Hunter v. Hunter ( 2011 )

[Cite as Hunter v. Hunter, 2011-Ohio-3094.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LISA HUNTER : JUDGES:
: Hon. William B. Hoffman, P.J.
Petitioner-Appellee, : Hon. Julie A. Edwards, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
PAUL HUNTER : Case No. 2010-CA-0290
:
Petitioner-Appellant . : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Family Court Division,
Case No. 2009DR1254
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: June 20, 2011
APPEARANCES:
For Appellee For Appellant
MITCHELL A. MACHAN STEVEN L. CRAIG
Mellett Plaza 437 Market Avenue North
3810 West Tuscarawas Street Canton, OH 44702
Canton, OH 4470
Stark County, Case No. 2010-CA-0290 2
Delaney, J.
{¶1} Appellant Paul Hunter appeals the September 15, 2010 Judgment Entry of
the Stark County Court of Common Pleas, Family Court Division, which vacated a
dissolution decree.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant and Appellee Lisa Hunter were married on April 24, 1998. One
child was born as issue of the marriage.
{¶3} On October 23, 2009, Appellant and Appellee filed a pro se Petition for
Dissolution with the Stark County Court of Common Pleas, Family Court Division. The
parties used pre-printed forms to file their Petition and related documents such as the
Financial Statements and Marital Settlement Agreement. Appellee completed the
information on the forms, including the Financial Statements. The Financial Statement
for Appellant does not list Appellant’s retirement benefits.
{¶4} The parties appeared for a Final Hearing on December 3, 2009. Appellant
and Appellee testified as to their Petition for Dissolution, but there is no transcript of this
hearing in the trial court record. The magistrate assigned to the case granted the
Decree of Dissolution and the Marital Settlement Agreement was incorporated into the
Decree. No party filed objections to the Magistrate’s Decision. On December 4, 2009,
the trial court filed a Final Decree of Dissolution. Neither party appealed the Final
Decree.
{¶5} On March 24, 2010, Appellant filed a Motion to Show Cause against
Appellee. Appellant asked the trial court to order Appellee to show cause as to why she
claimed their minor child as a dependent on Appellee’s 2009 tax return when the
Stark County, Case No. 2010-CA-0290 3
Decree of Dissolution stated that Appellant would claim their child as a dependent for
tax purposes. The parties resolved the matter and the motion was withdrawn on May 3,
2010.
{¶6} Appellee filed a Verified Motion for Relief from Judgment on May 12,
2010. In her motion, Appellee moved to vacate provisions of the December 4, 2009
Decree of Dissolution pursuant to Civ.R. 60(B)(1), (B)(3), and (B)(5). Appellee argued
that the Financial Statements filed with the Petition for Dissolution failed to disclose all
of Appellant’s assets and debts, specifically his retirement benefits.
{¶7} The Motion for Relief from Judgment was set for hearing on June 28,
2010. The hearing was held before the trial court judge and a transcript was made of
the hearing. No testimony was taken at hearing; rather, counsel for the parties
presented the parties’ positions as to the Motion for Relief from Judgment. The issues
at the hearing were Appellant’s retirement benefits: whether Appellee was aware of
Appellant’s retirement benefits when she completed the pre-printed Petition for
Dissolution and the Financial Statements, and was a dissolution decree void under Ohio
law if retirement benefits existed but were omitted. The trial court questioned whether it
was necessary for the court to hold an evidentiary hearing on the Motion for Relief. The
trial court determined that the parties should brief the issues.
{¶8} The parties submitted their briefs to the trial court. On September 15,
2010, the trial court granted Appellee’s Motion for Relief from Judgment and vacated
the December 4, 2009 Decree of Dissolution.
{¶9} It is from this judgment Appellant now appeals.
Stark County, Case No. 2010-CA-0290 4
ASSIGNMENTS OF ERROR
{¶10} Appellant raises two Assignments of Error:
{¶11} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED
ITS DISCRETION IN SUSTAINING PETITIONER-APPELLEE'S VERIFIED MOTION
FOR RELIEF FROM JUDGMENT WHERE (A) NO MERITORIOUS DEFENSE OR
CLAIM WAS SHOWN TO EXIST; (B) PETITIONER-APPELLEE FAILED TO SHOW
THAT SHE WAS ENTITLED TO RELIEF UNDER ONE OF THE GROUNDS STATED
IN CIV.R. 60(B)(1) THROUGH (5); AND (C) THE MOTION WAS NOT TIMELY MADE.
{¶12} “II. THE TRIAL COURT ERRED, AS A MATTER OF LAW, FAILING TO
CONDUCT AN EVIDENTIARY HEARING IN THE ABSENCE OF ANY SWORN
STATEMENTS AS TO ANY OPERATIVE FACTS THAT WOULD LEND TO THE
GRANTING OF RELIEF FROM JUDGMENT IN A DISSOLUTION CASE.
II.
{¶13} We address Appellant’s second Assignment of Error first because it is
dispositive of this appeal. In this case, Appellee moved to vacate the dissolution
because certain assets, including Appellant’s retirement benefits, were omitted from the
separation agreement. A hearing was held on the motion where counsel presented
arguments, rather than evidence, that showed that Appellee may have been aware of
Appellant’s assets but did not include them in the self-prepared separation agreement.
After briefing, the trial court granted the motion for relief and vacated the dissolution.
Appellant argues the trial court erred in granting Appellee’s Motion for Relief from
Judgment without first conducting an evidentiary hearing. We agree.
Stark County, Case No. 2010-CA-0290 5
{¶14} The decision whether to grant a motion for relief from judgment under
Civ.R. 60(B) lies within the trial court's sound discretion. Griffey v. Rajan (1987), 33
Ohio St.3d 75, 514 N.E.2d 1122. In order to find abuse of discretion, we must
determine the trial court's decision was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶15} A party seeking relief from judgment pursuant to Civ.R. 60(B) must show:
“(1) a meritorious defense or claim to present if relief is granted; (2) entitlement to relief
under one of the grounds set forth in Civ.R. 60(B)(1)-(5); and (3) the motion must be
timely filed.” GTE Automatic Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d
146, 351 N.E.2d 113, paragraph two of the syllabus.
{¶16} Appellee brought her motion for relief from judgment pursuant to Civ.R.
60(B)(1), 60(B)(3), and 60(B)(5). Civ.R. 60(B) states in pertinent part,
{¶17} “On motion and upon such terms as are just, the court may relieve a party
* * * from a final judgment, order or proceedings for the following reasons: (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.
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 to taken.”
Stark County, Case No. 2010-CA-0290 6
{¶18} In McLoughlin v. McLoughlin, 10th Dist. 05AP-621, 2006-Ohio-1530, our
colleagues in Tenth District Court of Appeals remarked upon the significance of
vacating a dissolution of marriage:
{¶19} “A court must be diligent in its analysis when a party seeks relief from a
dissolution of marriage. Whereas a divorce proceeding is adversarial in nature, when a
marriage ends in dissolution, the couple must jointly petition the court and present a
separation agreement voluntarily executed by both parties. If, at any time prior to the
actual journalization of dissolution, either party becomes dissatisfied with the separation
agreement, the court cannot proceed with the dissolution. In other words, as the Ohio
Supreme Court has observed, ‘mutual consent is the cornerstone of our dissolution law.’
Knapp v. Knapp (1986), 24 Ohio St.3d 141, 144, 493 N.E.2d 1353. Thus, in seeking
relief from dissolution, the moving party is essentially asking to be released from his or
her own promise. Courts must be wary and ensure that relief under Civ.R. 60(B) is
justified, not merely a tool used ‘to circumvent the terms of a settlement agreement
simply because, with hindsight, [the moving party] has thought better of the agreement
which was entered into voluntarily and deliberately.’ Biscardi v. Biscardi (1999), 133
Ohio App.3d 288, 292, 727 N.E.2d 949.”
{¶20} The Tenth District further noted that when an asset is completely omitted
from a dissolution decree or settlement agreement, such an omission may be sufficient
grounds for relief from Civ.R. 60(B)(5). Id. at ¶ 31. “Ultimately, whether equity demands
that the judgment be set aside remains a question within the court’s discretion * * *.” Id.
Stark County, Case No. 2010-CA-0290 7
{¶21} R.C. 3105.61 et seq. allows dissolution of marriage by agreement of the
parties without proof of marital misconduct but subject to judicial procedures. R.C.
3105.63 states:
{¶22} “The separation agreement shall provide for a division of all property;
spousal support; if there are minor children of the marriage, the allocation of parental
rights and responsibilities for the care of the minor children, the designation of a
residential parent and legal custodian of the minor children, child support, and parenting
time rights; and, if the spouses so desire, an authorization for the court to modify the
amount or terms of spousal support, or the division of property, provided in the
separation agreement.”
{¶23} Appellee argued in her motion for relief that because the Marital
Settlement Agreement did not provide for a division of all of the parties’ property,
specifically Appellant’s retirement benefits, the decree should be vacated because it is
void. Appellee states that because the dissolution decree is void as a matter of law, no
evidentiary hearing is necessary to grant relief pursuant to Civ.R. 60(B).
{¶24} Appellee argued under Holcomb v. Holcomb (1989), 44 Ohio St.3d 128,
541 N.E.2d 597, “[a] vested pension plan accumulated during marriage is a marital
asset and must be considered in conjunction with other factors listed under R.C.
3105.18 and all other relevant factors in dividing marital assets and liabilities” in a
divorce proceeding. However, Holcomb went on to state that “[t]he court is not required
to divide the pension benefits as a matter of law; however, it must consider the pension
plan as a marital asset in reaching an equitable division of property.”
Stark County, Case No. 2010-CA-0290 8
{¶25} More on point, the First District Court of Appeals in In re Murphy (1983),
10 Ohio App.3d 134, 461 N.E.2d 910, examined a motion to vacate a decree of
dissolution where the separation agreement omitted a significant amount of the
husband’s assets. The husband and wife agreed to dissolve their 35-year marriage and
the husband prepared the separation agreement documents with his counsel. The wife
agreed to the terms of the separation without the advice of counsel. Unbeknownst to
the wife, the husband omitted 70.59% of his assets, giving the husband 82.29% of the
total assets and the wife 17.71%. One year later, the wife obtained counsel because of
the husband’s separate real estate transaction. An investigation into the parties’ assets
resulted in the wife filing a motion to vacate the dissolution decree.
{¶26} The first issue before the court was whether the dissolution decree was
void or voidable because it failed to provide for a division of all property as determined
to be mandatory pursuant to R.C. 3105.63. The court found that where a “separation
agreement omits assets that are both substantial in relative amount and material to an
informed and deliberate agreement about equitable division of property, such omissions
render the dissolution decree voidable, and the decree can be vacated by motion for
relief filed under Civ.R. 60(B)(5).” Murphy, paragraph two of syllabus.
{¶27} In this case, the parties omitted an unknown amount of assets from the
Marital Settlement Agreement. We find that the alleged omissions from the Hunter’s
Marital Settlement Agreement render the dissolution decree voidable and a motion for
relief pursuant to Civ.R. 60(B) can be used to vacate the decree.
Stark County, Case No. 2010-CA-0290 9
{¶28} In finding that a decree of dissolution could be vacated under Civ.R.
60(B)(5), the Murphy court then considered factors to be examined when making that
determination:
{¶29} “Among the factors to be considered by the trial court in determining
whether relief from a decree of dissolution based on an incomplete separation
agreement should be granted under Civ.R. 60(B) in the first instance (factors that will
also be used by a reviewing court in determining whether the trial court abused its
discretion) are the following: what caused the delay in making the motion; whether the
delay was reasonable; what personal knowledge the movant had about the nature,
extent and value of all the marital assets (whether included or omitted); what the movant
should have known about them in the exercise of ordinary care; whether the movant
expressly or implicitly concurred in the property provisions of the separation agreement;
what deceptions, if any, were used by the other spouse; and what has intervened
between the decree and the motion (such as, remarriage of either spouse or both
spouses).”
{¶30} In Murphy, the trial court held an evidentiary hearing on the motion to
vacate. The First District reviewed the record with the above factors to determine that
the trial court did not abuse its discretion to vacate the decree of dissolution.
{¶31} In this case, the parties prepared the dissolution documents, including the
financial statements, using pre-printed forms and without the assistance of counsel.
The financial statements did not include any information about Appellant’s retirement
benefits. The trial court held a hearing on the parties’ dissolution where the parties
Stark County, Case No. 2010-CA-0290 10
testified as to the Marital Settlement Agreement. The parties have not provided a
transcript of that hearing.
{¶32} Appellee brought her verified motion for relief from judgment pursuant to
Civ.R. 60(B)(1), (3), and (5) alleging the omission of Appellant’s assets from the Marital
Settlement Agreement. At the hearing on the motion for relief from judgment, the trial
court did not take any evidence; but the trial court did acknowledge that an evidentiary
hearing may be necessary based on this Court’s previous rulings on Civ.R. 60(B)
motions. As to the crux of Appellee’s basis for vacating the decree of dissolution,
Appellee’s counsel stated that Appellee knew Appellant had a pension at the time the
parties prepared the dissolution documents, but Appellee did not know the value of
Appellant’s retirement benefits. (T. 9). Appellee allegedly prepared the documents
herself, but there was no further explanation at the hearing as to why the benefits were
not included or what was the value of the missing benefits. The trial court granted the
motion to vacate, but did not provide its reasoning in its judgment entry.
{¶33} We find that based on the state of this record, along with the significance
of vacating a decree of dissolution and the factors to be considered under Murphy, an
evidentiary hearing wherein testimony under oath could be adduced was warranted
before the trial court granted Appellee’s motion for relief from judgment based on the
alleged omission of assets.
{¶34} We therefore sustain Appellant’s second Assignment of Error and find it is
dispositive of this appeal rendering Appellant’s first Assignment of Error premature at
this time.
Stark County, Case No. 2010-CA-0290 11
{¶35} The judgment of the Stark County Court of Common Pleas, Family Court
Division, is reversed and the matter is remanded for further proceedings.
By: Delaney, J.
Hoffman, P.J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JULIE A. EDWARDS
Stark County, Case No. 2010-CA-0290 12
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
LISA HUNTER, :
:
Petitioner-Appellee, :
:
-vs- : JUDGMENT ENTRY
:
PAUL HUNTER, :
:
Petitioner-Appellant. : Case No. 2010-CA-0290
For the reasons stated in our accompanying Opinion, the judgment of the Stark
County Court of Common Pleas, Family Court Division, is reversed and the matter is
remanded to the trial court for further proceedings. Court costs taxed to Appellee.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JULIE A. EDWARDS