Roubanes-Luke v. Roubanes , 109 N.E.3d 671 ( 2018 )

[Cite as Roubanes-Luke v. Roubanes, 2018-Ohio-1065.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Barbara A. Roubanes Luke, :
Plaintiff-Appellee/ :
Cross-Appellant,
:
v. No. 16AP-766
: (C.P.C. No. 08DR-2851)
Matthew G. Roubanes,
: (REGULAR CALENDAR)
Defendant-Appellant/
Cross-Appellee. :
D E C I S I O N
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 Relations.
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.
No. 16AP-766 2
{¶ 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 pay to Roubanes child support in the amount of $930.70 per month, plus
a processing charge and cash medical support (in the absence of private health insurance
coverage for the children). The parties arrived at that amount of child support after setting
Roubanes' annual income at $40,000 and Luke's annual income at $75,520. The trial court
No. 16AP-766 3
increased the amount of child support due by $554 "per month for 28 months, to pay past
[temporary child support] arrearages and equalize [the] property settlement." (Aug. 27,
2009 Deviation Findings of Fact.)
{¶ 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 Civ.R. 60(B)(5)
from the property distribution and child support provisions contained in the August 27,
2009 divorce decree. Luke also requested that that trial court relieve her of all child support
obligations, whether imposed pre-divorce or post-divorce, and all orders requiring her to
pay Roubanes' attorney fees. Luke asserted such relief was necessary because Roubanes
had deliberately withheld from her and the trial court financial information relevant to the
determination of his income and the division of the marital property. According to Luke,
her motion was timely because she based it on Civ.R. 60(B)(5), and such motions need only
be filed within a reasonable time after a final judgment.
{¶ 10} In opposing Luke's motion for Civ.R. 60(B) relief, Roubanes denied
withholding financial information from Luke or the trial court. Additionally, Roubanes
argued that Luke's motion was untimely. Given the character of Luke's allegations,
Roubanes contended that Civ.R. 60(B)(3), not Civ.R. 60(B)(5), applied to her motion.1
Because Luke did not file her motion within one year of the August 27, 2009 judgment,
Roubanes maintained that she missed the one-year deadline for seeking relief under Civ.R.
60(B)(3).
{¶ 11} The trial court held a hearing on Luke's Civ.R. 60(B) motion. Both Luke and
Roubanes testified and presented documentary evidence at the hearing.
1 Civ.R. 60(B)(3) allows a court to vacate a judgment due to "fraud * * *, misrepresentation or other
misconduct of an adverse party."
No. 16AP-766 4
{¶ 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 Civ.R. 60(B) motion, that Roubanes had deposited
into his U.S. Bank and Chase Bank accounts $74,559.54 in 2008 and $103,243.58 in 2009.2
{¶ 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 Civ.R.
60(B)(5). The trial court also concluded that Luke's Civ.R. 60(B)(5) motion was timely
because she filed it within a month of discovering the amounts Roubanes had deposited
into his U.S. Bank and Chase Bank accounts in 2008 and 2009.
{¶ 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
2 According to Luke, Roubanes did not divulge the existence of the U.S. Bank account before or during the
summary trial. Although Luke knew of the Chase Bank account at the time of trial, she claims that she did
not know the amount of the funds that Roubanes had deposited into that account in 2008 or 2009.
Roubanes maintains that he disclosed printouts of his bank account balances during the summary trial.
No. 16AP-766 5
contemplated by Civ.R. 60(B)(3). The trial court denied Luke relief from the property
distribution because she failed to file her motion within one year of the August 27, 2009
judgment, as required for motions filed under Civ.R. 60(B)(3).
{¶ 16} Both Roubanes and Luke appealed the October 14, 2016 judgment. However,
neither party has asserted any assignments of error. Pursuant to App.R. 16(A)(3), an
appellant's brief must contain "[a] statement of the assignments of error presented for
review, with reference to the place in the record where each error is reflected." Assignments
of error are particularly important because appellate courts determine each appeal "on its
merits on the assignments of error set forth in the briefs under App.R. 16." App.R.
12(A)(1)(b). Consequently, without assignments of error, an appellate court has nothing to
review. Pack v. Hilock Auto Sales, 10th Dist. No. 12AP-48, 2012-Ohio-4076, ¶ 13.
{¶ 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].
No. 16AP-766 6
(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 Civ.R.
60(B)(5). We agree.
{¶ 21} Pursuant to Civ.R. 60(B), a court may relieve a party from a final judgment,
order, or proceeding 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.
Civ.R. 60(B)(1) through (5). To prevail 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
No. 16AP-766 7
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 absent an abuse of discretion. Griffey v. Rajan, 33 Ohio St. 3d 75, 77
(1987).
{¶ 22} A court may grant relief under Civ.R. 60(B)(5), the so-called "catch-all"
provision, only in those extraordinary and unusual cases where the moving party
demonstrates substantial grounds warranting relief from judgment. Caruso-Ciresi, Inc. v.
Lohman, 5 Ohio St. 3d 64 (1983), paragraph two of the syllabus; Social Psychological
Servs., Inc. v. Magellan Behavioral Health, Inc., 10th Dist. No. 10AP-326, 2010-Ohio-
6531, ¶ 17. Such substantial grounds exist if the moving party establishes a fraud upon the
court. Coulson v. Coulson, 5 Ohio St. 3d 12 (1983), paragraph one of the syllabus. Fraud
upon the court exists if the fraud " 'defile[s] the court itself, or is a fraud perpetrated by the
officers of the court so that the judicial machinery cannot perform in the usual manner its
impartial task of adjudicating cases that are presented for adjudication.' " Id. at 15.
Examples of fraud upon the court justifying Civ.R. 60(B)(5) relief include egregious
misconduct such as bribery of a judge or jury member by a third party or fabrication of
evidence by counsel. Barton v. Barton, 2d Dist. No. 2015-CA-53, 2016-Ohio-5264, ¶ 19;
Wilkerson v. Wilkerson, 12th Dist. No. CA2013-06-089, 2014-Ohio-1322, ¶ 17; Stairwalt
v. Trisha, 2d Dist. No. 2007 CA 30, 2008-Ohio-2597, ¶ 14.
{¶ 23} Courts carefully distinguish between fraud upon the court, which is a basis
for relief from judgment under Civ.R. 60(B)(5), and fraud upon a party, which is a basis for
relief from judgment under Civ.R. 60(B)(3). Technically, any fraud connected with the
presentation of a case to a court could constitute fraud upon the court in a broad sense.
Coulson at 15. However, courts cannot invoke Civ.R. 60(B)(5) when any of the more
specific provisions of Civ.R. 60(B) apply. Cuyahoga Support Enforcement Agency v.
Guthrie, 84 Ohio St. 3d 437, 440 (1999); Lohman at paragraph one of the syllabus. As we
stated above, Civ.R. 60(B)(3) permits relief from judgment in cases of fraud,
misrepresentation, and other misconduct by an adverse party. Thus, Civ.R. 60(B)(3)
applies when an adverse party's fraud, misrepresentation, or misconduct in obtaining a
judgment has prevented the other party from fully and fairly presenting its case. Bank of
No. 16AP-766 8
Am., N.A. v. Kuchta, 141 Ohio St. 3d 75, 2014-Ohio-4275, ¶ 13; PNC Bank, N.A. v. Botts,
10th Dist. No. 12AP-256, 2012-Ohio-5383, ¶ 15. "Fraud on an adverse party may exist
when, for example, a party presents material false testimony at trial, and the falsity is not
discovered until after the trial." Botts at ¶ 15; accord Barton at ¶ 18; In re Dankworth Trust,
7th Dist. No. 14 BE 9, 2014-Ohio-5825, ¶ 38. If courts accorded fraud upon the court a
broad meaning, it could easily subsume the type of fraud covered by Civ.R. 60(B)(3).
Courts, therefore, narrowly construe fraud upon the court in order to prevent it from
overwhelming Civ.R. 60(B)(3) and rendering Civ.R. 60(B)(3)'s one-year time limitation
meaningless. Heltzel v. Heltzel, 11th Dist. No. 3788 (Sept. 30, 1987); Hartford v. Hartford,
53 Ohio App. 2d 79, 83 (8th Dist.1977); accord Great Coastal Express, Inc. v. Internatl.
Bhd. of Teamsters, 675 F.2d 1349, 1356 (4th Cir.1982) ("The principal concern motivating
narrow construction is that the otherwise nebulous concept of 'fraud on the court' could
easily overwhelm the specific provision of 60(b)(3) and its time limitation and thereby
subvert the balance of equities contained in the Rule.").
{¶ 24} Due to this narrow construction, in the usual case, fraud in the presentation
of evidence amounts to fraud upon a party. Coulson at 15. False testimony and the
withholding of evidence generally fall within Civ.R. 60(B)(3), not Civ.R. 60(B)(5). Derico
v. Schimoler, 8th Dist. No. 94935, 2011-Ohio-615, ¶ 12; Caron v. Manfresca, 10th Dist. No.
98AP-1399 (Sept. 23, 1999); Still v. Still, 4th Dist. No. 95CA15 (June 25, 1996); accord
Geo. P. Reintjes Co. v. Riley Stoker Corp., 71 F.3d 44, 49 (1st Cir.1995) (holding that
"perjury alone, absent allegation of involvement by an officer of the court * * *, has never
been sufficient" to constitute fraud upon the court); Gleason v. Jandrucko, 860 F.2d 556,
560 (2d Cir.1988) (holding that "neither perjury nor nondisclosure, by itself, amounts to
anything more than fraud involving injury to a single litigant"); Kerwit Med. Prods., Inc. v.
N & H Instruments, Inc., 616 F.2d 833, 837 (5th Cir.1980) ("[M]ere nondisclosure to an
adverse party and to the court of facts pertinent to a controversy before the court does not
add up to 'fraud upon the court.' "). "The possibility of perjury, even concerted, is a common
hazard of the adversary process with which litigants are equipped to deal through discovery
and cross-examination, and, where warranted, [a Civ.R. 60(B)(3)] motion for relief from
judgment." Geo. P. Reintjes at 49. Fraud upon the court is limited to the more egregious
No. 16AP-766 9
forms of subversion of the legal process, which a court cannot necessarily expect to be
exposed by the normal adversary process. Great Coastal Express at 1357.
{¶ 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, Civ.R. 60(B)(3) is the only
ground upon which the aggrieved party can seek relief from a prior judgment. If, on the
other hand, an attorney or other officer of the court perpetrates a fraud on the court, then
Civ.R. 60(B)(5) is the proper basis for requesting relief. Wells Fargo Bank, N.A. v. Bluhm,
6th Dist. No. E-13-052, 2015-Ohio-921, ¶ 30-31; Costakos v. Costakos, 10th Dist. No. 03AP-
959, 2004-Ohio-2138, ¶ 11; McGowan v. Stoyer, 10th Dist. No. 02AP-263, 2002-Ohio-
5410, ¶ 18; Applegate v. Applegate, 10th Dist. No. 99AP-1321 (Sept. 21, 2000); In re
Foreclosure of Liens for Delinquent Land Taxes, 10th Dist. No. 99AP-714 (Mar. 28, 2000);
Turoczy v. Turoczy, 30 Ohio App. 3d 116 (8th Dist.1986), syllabus; accord In re Dankworth
Trust at ¶ 38 (holding that Civ.R. 60(B)(5) is "used when the fraud alleged is done by an
officer of the court; Civ.R. 60(B)(3) only applies to fraud that is committed by an adverse
party"); BAC Home Loans Servicing, L.P. v. Meister, 11th Dist. No. 2012-L-042, 2013-
Ohio-873, ¶ 16, quoting Coulson at 15 ("[A] party may use Civ.R. 60(B)(5) to raise the issue
of fraud upon the court; however, this concept has been distinguished from fraud by an
adverse party and has been carefully limited to the occasion where an 'officer of the court
* * * actively participates in defrauding the court.' "); Huffman v. Huffman, 4th Dist. No.
00CA704 (Oct. 30, 2001) ("[I]n order to show fraud upon the court, and be subject to Civ.R.
60(B)(5)'s more lenient time limits, a party must show that an officer of the court actively
participated in defrauding the court.").
No. 16AP-766 10
{¶ 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 Civ.R. 60(B)(3).3
{¶ 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.
3 The adversarial process provided Luke with the means to uncover evidence to expose Roubanes' fraud,
but she did not use those means. Luke failed to diligently pursue discovery and she relinquished her right
to a full trial, where she could have cross-examined Roubanes.
No. 16AP-766 11
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 granting Luke Civ.R. 60(B)(5) relief on that basis. Accordingly, we
sustain Roubanes' first assignment of error.
{¶ 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
No. 16AP-766 12
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 Civ.R. 60(B) hearing, Luke produced Exhibit E, which her
attorney described as a printout from the West Virginia auditor's website. Exhibit E
appears to show that the value of the West Virginia property was $67,000 in tax year 2009.4
Luke relied on Exhibit E to contend that Roubanes misrepresented the value of the West
Virginia property during the summary trial. Luke argued to the trial court that this
misrepresentation warranted relief under Civ.R. 60(B)(5). The trial court rejected Luke's
argument, stating the allegations of fraud associated with the marital property division
constituted fraud upon Luke, and not the court.
{¶ 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 of the court participated in the alleged fraud. Accordingly,
the trial court did not err in concluding that Roubanes did not commit fraud upon the court
when he allegedly misrepresented the value of the West Virginia property.
{¶ 38} In making her appellate argument, Luke cites precedent from this court
holding that a trial court may grant relief under Civ.R. 60(B)(5) if a party fails to disclose a
marital asset prior to the entry of a divorce decree. See, e.g., Clymer v. Clymer, 10th Dist.
No. 91AP-438 (Sept. 10, 1991); Hellwege v. Hellwege, 10th Dist. No. 85AP-927 (June 5,
1986). Notably, in these cases, the question was not whether a party had committed fraud
upon the court, thus entitling the opposing party to relief under Civ.R. 60(B)(5). Rather,
the precedent at issue held that a party's failure to disclose a marital asset can constitute a
Civ.R. 60(B)(5) ground independent from the fraud-upon-the-court basis for relief.
Trenner v. Trenner, 10th Dist. No. 01AP-743 (Jan. 31, 2002).
{¶ 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
4 No witness authenticated Exhibit E. Therefore, there is no evidence explaining the origin or meaning of
the information contained on the page of the exhibit that appears to state the property's appraised value.
Despite the murkiness surrounding Exhibit E, we will presume for purposes of this appeal that Exhibit E
establishes that in 2008 a West Virginia government entity appraised the parties' property at $67,000.
No. 16AP-766 13
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 Civ.R. 60(B) relief based on the rule followed in Clymer and Hellwege, we need
not address that contention. See Bonn v. Bonn, 10th Dist. No. 12AP-1047, 2013-Ohio-2313,
¶ 9 ("[T]his court rules on assignments of error only, and will not address mere
arguments."). Second, the precedent at issue only applies when a marital asset is entirely
omitted from the property division; not where a party misstates an asset's value. Tait v.
Tait, 10th Dist. No. 92AP-306 (Sept. 29, 1992); Hellwege. As the alleged misrepresentation
here relates solely to the property's value, this precedent does not justify relief from
judgment in this case.
{¶ 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
Civ.R. 60(B) relief, and we affirm that judgment to the extent that it denied Luke Civ.R.
60(B) relief.
Judgment affirmed in part; reversed in part.
BROWN, P.J., and BRUNNER, J., concur.