Howard v. Howard , 2014 Ohio 5248 ( 2014 )

[Cite as Howard v. Howard, 2014-Ohio-5248.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Felice L. Howard (nka Harris), :
Plaintiff-Appellant, :
No. 14AP-292
v. : (C.P.C. No. 11DR-2189)
Terry M. Howard, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on November 25, 2014
The Behal Law Group LLC, and John M. Gonzales, for
appellant.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations.
KLATT, J.
{¶ 1} Plaintiff-appellant, Felice L. Howard (nka Harris), appeals a judgment of
the Franklin County Court of Common Pleas, Division of Domestic Relations, that denied
her motion for Civ.R. 60(B) relief. For the following reasons, we affirm that judgment.
{¶ 2} In an agreed judgment dated October 12, 2012, the trial court granted
Harris and defendant-appellee, Terry M. Howard, a divorce. The trial court also
determined that the parties' marriage terminated on December 31, 2009, and it divided
the parties' marital property. With regard to Howard's pension with the Ohio Public
Employees Retirement System ("OPERS"), the trial court stated:
Plaintiff is to receive one-half of the marital share of the
Defendant's OPERS retirement from the date of the marriage
until December 31, 2009. * * * The DOPO required herein
No. 14AP-292 2
shall be prepared by Pension Evaluators and the cost will be
divided equally between the parties. Both parties are ordered
to cooperate with Pension Evaluations to effectuate the
completion of the DOPO within 120 days of the signing of this
order.
(R. 164 at 3-4.)
{¶ 3} The acronym "DOPO" stands for division of property order. Using the
process set forth in R.C. 3105.80 through 3105.90, a trial court can issue a DOPO, thereby
requiring the administrator of a public-retirement program to distribute benefits divided
by a divorce decree directly to a nonmember ex-spouse. Thompson v. Thompson, 196
Ohio App.3d 764, 2011-Ohio-6286, ¶ 13, fn. 3 (10th Dist.).
{¶ 4} R.C. 3105.82 requires that all DOPOs be on a form developed pursuant to
R.C. 3105.90. Harris' attorney completed the necessary form and submitted it to the trial
court. On August 13, 2013, the trial court issued the DOPO, which directed OPERS to pay
to Harris her share of the marital portion of Howard's monthly benefit. Harris began
receiving her part of Howard's monthly benefit in November 2013.
{¶ 5} On October 11, 2013, Harris moved for relief from the divorce decree
pursuant to Civ.R. 60(B). Howard did not respond. In the hearing on her motion, Harris
explained that, when she agreed to the property division set forth in the divorce decree,
she misunderstood the means by which she would receive her portion of Howard's
benefits. As of the effective date of divorce—December 31, 2009—Howard was receiving a
monthly benefit payment from OPERS. Harris knew that. She correctly believed that,
upon receipt of a DOPO, OPERS would begin sending her with a monthly payment in the
amount of her portion of Howard's total monthly benefit. Harris, however, erroneously
believed that OPERS would also provide her a lump-sum payment in the amount of her
share of all the monthly payments that OPERS had previously made to Howard from
December 31, 2009 until the implementation of the DOPO. Harris discovered months
after the entry of the divorce decree that a DOPO could not effectuate the lump-sum
payment that she expected. Therefore, she sought to vacate the divorce decree.
{¶ 6} In a judgment issued March 12, 2014, the trial court denied Harris' motion.
Harris now appeals, and she assigns the following error:
The trial court's denial of Ms. Harris' [Civ.R.] 60(B) motion
was an abuse of discretion.
No. 14AP-292 3
{¶ 7} To succeed on a Civ.R. 60(B) motion, a party must demonstrate that: (1) it
has a meritorious claim or defense to present if the court grants it relief; (2) it is entitled
to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) it filed the
motion within a reasonable time and, when relying on a ground for relief set forth in
Civ.R. 60(B)(1), (2), or (3), it filed the motion not more than one year after the judgment,
order, or proceeding was entered or taken. GTE Automatic Elec., Inc. v. ARC Industries,
Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. If the moving party fails to
demonstrate any of these three requirements, the trial court should overrule the motion.
Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20 (1988). A trial court exercises its
discretion when ruling on a Civ.R. 60(B) motion, and, thus, an appellate court will not
disturb such a ruling on appeal absent an abuse of discretion. Griffey v. Rajan, 33 Ohio
St.3d 75, 77 (1987).
{¶ 8} Here, Harris argues that the trial court erred when it concluded that she
failed to demonstrate entitlement to relief under any Civ.R. 60(B) ground. Harris
contends that she established a mistake, a Civ.R. 60(B)(1) ground for relief, and "any
other reason justifying relief from judgment," the Civ.R. 60(B)(5) ground for relief. We
disagree.
{¶ 9} Typically, in order to obtain Civ.R. 60(B) relief on the basis of mistake, the
moving party must demonstrate a mutual mistake shared by both parties as to a material
fact in that case. Mamula v. Mamula, 11th Dist. No. 2005-T-0148, 2006-Ohio-4176, ¶ 13;
McLoughlin v. McLoughlin, 10th Dist. No. 05AP-621, 2006-Ohio-1530, ¶ 34; Smith v.
Smith, 8th Dist. No. 83275, 2004-Ohio-5589, ¶ 17. Courts, therefore, generally do not
grant relief from a judgment when the alleged mistake was a unilateral mistake on the
part of one party or its counsel. Mamula at ¶ 14; Smith at ¶ 17. Nevertheless, a court may
find that a unilateral mistake qualifies as a ground for relief from judgment if the party
alleging the mistake shows a justification for failing to avoid the mistake. Mamula at ¶ 14;
Smith at ¶ 17. Negligence is an insufficient justification. McLoughlin at ¶ 35; Fifth Third
Bank v. Banks, 10th Dist. No. 04AP-860, 2005-Ohio-4972, ¶ 23.
{¶ 10} On appeal, Harris claims that the mistake at issue is the parties' shared
belief that the divorce decree would divide the marital portion of Howard's OPERS
benefits equally. That belief, however, is not a mistake: the decree grants Harris one-half
No. 14AP-292 4
of the marital portion of Howard's OPERS benefits. The actual mistake at issue—the one
Harris asserted before the trial court—is the belief that OPERS would pay Harris a lump
sum in the amount of her share of the benefits paid out to Howard from December 31,
2009 until November 2013, when OPERS began issuing monthly payments to Harris.
Harris' testimony during the hearing shows that this mistake was Harris' alone, not a
mistake that both Harris and Howard made.
{¶ 11} During the hearing, Harris and her attorney engaged in the following
colloquy:
Q: And, did you have an understanding of what you were to
obtain or what was to be given to you as a result of the
determination of the [d]e facto date of [December 31,] 2009?
A: I was told I'd be getting a lump sum payment from what
would be January 1st, 2010 until – well I assumed was Oct –
October 2012, but since he had been getting the money that I
would get the money that I was supposed to be receiving and
that it would be a lump sum.
(Tr. 11-12.) The court interjected, "Who were you supposed to get that from?" (Tr. 12.)
Harris responded, "My understanding was P-E-R-S (sic)." (Tr. 12.) Harris' attorney then
revisited the issue:
Q: Your understanding of the agreement that you reached
was based upon your understanding that you were to receive a
lump sum payment, you're thinking from –
A: P-E-R-S (sic).
Q: - P-E-R-S (sic)?
A: Yes.
Q: That it would come somehow out of the asset that was still
remaining at P-E-R-S (sic)?
A: Correct.
(Tr. 13.)
{¶ 12} Howard did not appear at the hearing and, thus, did not testify as to his
understanding as to how Harris would recover her portion of the benefits that OPERS had
already paid to him. Moreover, Harris offered no testimony as to her knowledge of
No. 14AP-292 5
Howard's understanding. Thus, there is no evidentiary basis to conclude that the mistake
at issue was a mutual mistake.
{¶ 13} Harris, having argued that the mistake was mutual, does not offer any
justification for failing to avoid the mistake. Accordingly, we conclude that Harris has
failed to demonstrate a mistake that qualifies as a Civ.R. 60(B)(1) reason for granting her
relief from judgment.
{¶ 14} We next turn to Harris' contention that she established the Civ.R. 60(B)(5)
ground for relief. Intended as a "catch-all" provision, Civ.R. 60(B)(5) "reflect[s] the
inherent power of a court to relieve a person from the unjust operation of a judgment, but
is not intended to be used as a substitute for any of the other more specific provisions of
Civ.R. 60(B)." Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 (1983), paragraph one of
the syllabus. Courts only invoke Civ.R. 60(B)(5) in those extraordinary and unusual cases
where the moving party demonstrates substantial grounds warranting relief from
judgment. Id. at paragraph two of the syllabus; Social Psychological Servs., Inc. v.
Magellan Behavioral Health, Inc., 10th Dist. No. 10AP-326, 2010-Ohio-6531, ¶ 17.
{¶ 15} Here, the basis that Harris asserts for relief fits within Civ.R. 60(B)(1), thus
precluding the application of Civ.R. 60(B)(5). Moreover, we are not persuaded by Harris'
argument that the operation of the divorce decree is unjust. Harris' argument is based on
her contention—rejected above—that the divorce decree does not equally divide the
parties' marital property. Harris' real problem with the divorce decree is that, besides
providing for the issuance of a DOPO, it does not specify how Harris can acquire her
portion of Howard's OPERS benefits. This is a problem of enforcement. A trial court has
the inherent power to enforce its own judgment. Murphy v. Murphy, 10th Dist. No.
12AP-1079, 2013-Ohio-5776, ¶ 13; Cameron v. Cameron, 10th Dist. No. 12AP-349, 2012-
Ohio-6258, ¶ 10; accord Drummond v. Drummond, 5th Dist. No. 10-CA-20, 2010-Ohio-
6139, ¶ 25 (holding that that trial court had the power "to enforce implementation of the
division of the pension as it originally decreed"). Harris, therefore, may move the trial
court to order Howard to pay her the specific amount that OPERS cannot pay her
(because it has already paid that amount to Howard). If Howard does not comply with
the trial court's order, Harris may file a motion for contempt. As Harris has an alternate
No. 14AP-292 6
method to recover the money she seeks, we see no reason justifying the drastic step of
vacating a final judgment.
{¶ 16} In sum, because Harris cannot demonstrate a Civ.R. 60(B)(1) through (5)
ground for relief, we conclude that the trial court did not err in denying her relief from
judgment. Accordingly, we overrule Harris' assignment of error, and we affirm the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations.
Judgment affirmed.
DORRIAN and O'GRADY, JJ., concur.