Mullinix v. Mullinix ( 2022 )

[Cite as Mullinix v. Mullinix, 2022-Ohio-3398.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Logan E. Mullinix, :
Plaintiff-Appellee, :
No. 21AP-206
v. : (C.P.C. No. 17DR-399)
Pamela R. Mullinix, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 27, 2022
On brief: David K. Greer, for appellant. Argued: David K.
Greer.
On brief: Logan E. Mullinix, pro se. Argued: Logan E.
Mullinix.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations and Juvenile Branch
BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, Pamela R. Mullinix, appeals the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile
Branch overruling her motion for Civ.R. 60(B) relief and granting the oral motion of her
ex-husband, plaintiff-appellee, Logan E. Mullinix, to dismiss the Civ.R. 60(B) motion
pursuant to Civ.R. 41(B)(2).
{¶ 2} Pamela and Logan Mullinix were married in 1988 in Tennessee and have two
children. Logan filed for divorce in Franklin County in 2017, and an uncontested decree of
divorce, including property division, was entered on May 11, 2018. Pamela filed a motion
for relief from judgment on May 13, 2019, arguing that Logan misrepresented the value of
his personal property either in the decree itself or in a separate contempt action in which
he alleged in a contempt motion that Pamela has refused to return to him. The divorce
No. 21AP-206 2
decree states that "[Logan] shall be entitled to recover any of his tools and musical
equipment in [Pamela]'s possession." Pamela contends that prior to her approval of the
agreed decree, Logan estimated the worth of the "tools and musical equipment" at
approximately $20,000.00 but now claims they have an estimated value of $121,495. She
argues that if she had been aware of that higher value, she would not have agreed to the
property division.
{¶ 3} Pamela's motion was filed by her former counsel on May 13, 2019, and after
a few continuances, was set for hearing on August 27, 2020. But on that date, Pamela's
counsel was permitted to withdraw because of a conflict with his client. The hearing was
continued again, and ultimately did not occur until April 2, 2021. Pamela was apparently
unable to obtain new counsel by that date, and instead proceeded on the motion pro se.
{¶ 4} At the outset of the hearing, the court specifically addressed Pamela and
clarified what subjects it would consider at the hearing:
There is basically one issue with respect to this 60(B), and that
relates to your 60(B) that says Logan did not disclose
$121,495,000 [sic] worth of personal property at the time of the
negotiated settlement.
That's your burden to prove today, to show whether or not that
information rises to the level of a 60(B).
(Tr. at 9.1)
{¶ 5} In her hearing testimony, Pamela stated that prior to the divorce Logan had
valued the "tools and musical equipment" alleged to be in her possession at approximately
$20,000, but after the decree was entered Logan claimed in a contempt motion that the
tools and musical equipment were worth approximately $121,495. Her primary
documentary evidence consisted of (1) Logan's affidavit of property filed February 2, 2017
and prepared as part of his initial disclosures in the case, and which approximated the value
of his "equipment" at $20,000, (see Def. Pamela Mullinix's Ex. C), (2) an email sent by
Logan's former counsel after the decree was signed, itemizing the musical instruments and
equipment allegedly in Pamela's possession and assigning them an alleged "total
replacement cost estimate" of $121,495, (see Def. Pamela Mullinix's Ex. D at 1-3), and (3) a
1The parties agreed at the hearing and on appeal that the alleged nondisclosure was in the amount of
approximately $121,495.00, not $121,495,000.00.
No. 21AP-206 3
"marital balance sheet" prepared prior to the decree that listed the value of "business tools
and machinery" at $20,000. (See Def. Pamela Mullinix's Ex. R at 3.)
{¶ 6} But during Pamela's cross-examination, Logan's attorney confronted her
with her answer to a pre-trial interrogatory, in which she asserted that Logan had "Music
equipment purchased over the last 9 +/- years-spent in excess of $100,000.00." (See Pl.
Logan Mullinix's Ex. 7 at Interrogatory No. 12.) She testified:
Q: So I would like to turn to Exhibit 7. If it helps, the front page
looks like this.
Pam, is it fair to say these are your discovery responses from
what I had requested during litigation in the original divorce?
A: Yes.
Q: Can you please turn to the last page of Exhibit 7? Is that
your signature on that page?
A: Yes.
Q: And if you can turn in the exhibit to Interrogatory Number
12, it should be, I believe, on page 5, although I don't think I
have the pages numbered.
A: I don't have the page numbers. All right. 12.
Q: In that exhibit, I'd asked you to identify and describe any
and all items of property which you believe plaintiff presently
had in his possession which you thought were worth more than
$50 or greater and the amount you believe they were worth.
Correct?
A: Correct
Q: If you turn to the next page as part of your answer, you
answered, Music equipment, purchased over the last nine plus-
or-minus years, spent in excess of $100,000.
A. Correct.
Q. So prior to signing the decree, you knew that this music
equipment existed, correct?
A. I knew he said it existed. The value of it, I don't know. Where
the money came from to purchase it, I don't know. We didn't
have that kind of excess.
No. 21AP-206 4
THE COURT: Remember, just answer his questions.
Q: So prior to signing the decree, you stated your belief that
those items were worth hundred thousand dollars, or -- I'm
sorry. Let me correct myself.
You stated that you believe that he had spent in excess of a
hundred thousand dollars purchasing that equipment, correct?
A: Correct. Based on - - based on what Logan said.
Q: If we turn three pages forward to Interrogatory Number 20,
you reiterated a little over halfway through your response to
Interrogatory 20 that Logan had purchased—sorry, large
amounts of music equipment purchased over the last five to
seven years, spent in excess of $100,000.
So twice, you acknowledge your belief that those items had a
purchase cost of over a hundred thousand dollars, correct?
A: Correct.
(Tr. at 63-65.)
{¶ 7} At the conclusion of testimony, the court accepted all of Pamela's exhibits into
evidence. It proceeded to hear Pamela's objections to Logan's exhibits numbered 4, 5, and
6:
THE COURT: Exhibit 4, do you have an objection to Exhibit
4?
MS. MULLINIX: Is this John's Exhibit 4?
THE COURT: This is John's Exhibit 4, uh-huh. Let's see if I
can help you. Exhibit 4 is one of the balance statements that
you testified that you found in your basement and you gave to
[the court's forensic accountant]. Any objection to Exhibit 4?
MS. MULLINIX: I do object on the grounds that it still does
not prove that anything existed, in actuality. It proves that
there is a spreadsheet. There is no proof of actual purchase or
existence.
THE COURT: All right. Noting your objection, Exhibit 4 will
be admitted.
No. 21AP-206 5
Exhibit 5 is another one of those I'll call it an itemization that
you testified you found in your basement and you gave to [the
court's forensic accountant].
Is there any objection to Exhibit 5?
MS. MULLINIX: Same objection, Your Honor. It doesn't
prove that items exist or their value.
THE COURT: All right. Noting the objection, Exhibit 5 will be
admitted. Exhibit 6 is the email chain between [Pamela's trial
attorney] and [the court's forensic accountant] and [Logan's
trial attorney] back in 2018.
Any objection to that exhibit?
MS. MULLINIX: I'm sorry. That's exhibit what number?
THE COURT: Exhibit 6, ma'am.
MS. MULLINIX: I object to that exhibit on the grounds that it
still doesn't prove anything. There is emails going back and
there is accusations and proof. But there is still no proof of what
existed when, if it was -- if it was -- anything was even actually
purchased; what was purchased; where it was; what the value
was at one time versus another.
THE COURT: Okay. Noting your objection, Exhibit 6 will be
admitted.
(Tr. at 127-29.) The court proceeded to ask Logan's counsel had any "motion on behalf of
the defendant," who then requested "summary judgment on the issue * * *." Id. at 131. The
court suggested that counsel may have meant to make "a motion for dismissal of the action
pursuant to Civil Rule 41(b)(2)," and counsel agreed that was what was intended. Id. at
132. The court proceeded to explain Civ.R. 41 to Pamela, and then stated that the "motion
for 41 dismissal is granted."
[That] means I'm dismissing your motion for 60(B) re1ief. You
have not shown on the facts and the law presented a right to
relief.
You signed an agreed entry by your own testimony and
evidence. You had significant knowledge of significant assets
that may or may not have existed that you waived your right to
by virtue of going forward in your settlement.
No. 21AP-206 6
I will take the matter of fees under advisement. Thank you. You
are dismissed.
Id. at 133. The court prepared an entry memorializing its decision and this timely appeal
followed, in which Pamela has asserted four assignments of error with the judgment:
Assignment of Error No. I: The trial court erred in
admitting Plaintiff's Exhibits 4 and 5, which were not
authenticated, and also hearsay.
Assignment of Error No. II: The trial court erred in
admitting Plaintiff's Exhibit 6 which was hearsay.
Assignment of Error No. III: The trial court erred in
admitting Plaintiff's Exhibit 6 because it effectively made
counsel a witness, who was not subject to cross-examination.
Assignment of Error No. IV: The trial court erred in
dismissing appellant's Civil Rule 60(B) motion by construing
divorce decree as a valid, final agreement as to the disposition
of all property issues including the equipment.
For ease of review, we have reordered Pamela's assignments of error, and will begin by
addressing her fourth alleged error. First, we observe that Pamela asserts that her motion
was proper under multiple Civ.R. 60(B) subsections—specifically (1) (mistake,
inadvertence, surprise or excusable neglect), (3) (fraud or misconduct by an adverse party),
(4) (equity suggests that the judgment should not have prospective application), and (5)
(any other reason justifying relief). We must therefore analyze the validity of that claim,
and determine which subsections of the rule, if any, are appropriate to these facts.
{¶ 8} In Luke v. Roubanes, 10th Dist. No. 16AP-766, 2018-Ohio-1065, this court
addressed allegations factually similar to those Pamela advances here, and reviewed a
Civ.R. 60(B) decision based on the allegation that one of the parties to a divorce had made
financial misrepresentations that were "relevant to the determination of his income and the
division of the marital property." Id. at ¶ 9.
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.
No. 21AP-206 7
v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113(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, 520 N.E.2d 564 (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, 514 N.E.2d 1122 (1987).
***
In Scholler v. Scholler, 10 Ohio St.3d 98, 10 Ohio B. 426, 462
N.E.2d 158 (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.
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.
***
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).
No. 21AP-206 8
(Emphasis added.) Id. at ¶ 21-27. Here, Pamela has alleged that Logan misrepresented the
value of the tools and musical equipment in her possession, and that his misrepresentations
induced her to accept his proposed property settlement and agree to an uncontested
divorce. In accordance with Luke, we conclude that Pamela's motion must be based on
Civ.R. 60(B)(3) (fraud or misconduct by an adverse party), and we analyze her claims on
that basis.
{¶ 9} Pamela has repeatedly implied that this appeal is about whether or not the
tools and equipment that Logan claimed she possessed were actually in her possession after
the decree was entered, or if they even in fact exist. But that claim is not one of fraud by an
adverse party, and would therefore be presented in a domestic contempt motion. Rather,
this appeal turns solely upon whether evidence shows that Logan committed a fraud on
Pamela by listing the alleged value of those "tools and equipment" at $20,000 in his initial
disclosure of property, but as $121,495 in his post-judgment correspondence and pleadings.
{¶ 10} There is no evidence that the items in question have been appraised. And
while it is true there is a disconnect between the estimated worth of the items as described
in Logan's property affidavit and his subsequent claims regarding "replacement value,"
there is also indisputable evidence that Pamela herself estimated the value of at least a
portion of that property at over $100,000 before she signed the divorce decree. For that
reason alone, she cannot prevail on her Civ.R. 60(B) claim. And while it is true that the
trial court technically dismissed Pamela's motion pursuant to Civ.R. 41(b)(2) rather than
denying it (based "on the ground that upon the facts and the law the plaintiff has shown no
right to relief"), that is distinction without a practical difference here. Because Pamela
herself admitted that she was aware of the alleged cost or value of the items as in excess of
$100,000 prior to entering into the uncontested divorce, she cannot now claim that she
relied upon Logan's allegedly fraudulent valuation of the items at $20,000 when she
accepted the divorce. Accordingly, the trial court correctly determined that the evidence
established that Pamela was unable to prove her claims, and her fourth assignment of error
is overruled.
{¶ 11} In her first, second, and third assignments of error, Pamela argues that the
trial court erred by admitting and relying upon inadmissible evidence in reaching its
decision on the merits of her Civ.R. 60(B) motion. She claims that some of the exhibits
No. 21AP-206 9
were both unauthenticated and inadmissible hearsay, and that another exhibit was both
hearsay and could only be authenticated by counsel, causing counsel to act as a witness in
the case.
{¶ 12} We again find Luke to be instructive in addressing her contentions:
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, 45 N.E.3d
968; Niskanen v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-
Ohio-3626, ¶ 34, 912 N.E.2d 595. 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.
Id. at ¶ 29. Pamela did not present her authentication, hearsay, and "attorney-as-witness"
arguments set forth in these assignments of error to the court below. (See Tr. at 126-29.)
Our examination of the hearing transcript reveals that she did not challenge the admission
of the exhibits, but rather, she argued that the exhibits could not establish the truth of the
values that they claimed, or that the tools and musical equipment existed. The trial court
accepted her arguments, "noted" them for the record, and received the exhibits into
evidence. Because Pamela has raised her arguments for the first time in this court, they are
forfeited.
{¶ 13} Moreover, just as in Luke, "even had [appellant] not waived her argument,
she cannot prevail on it." Luke at ¶ 30. There is nothing in the record or in the court's
judgment entry to suggest that the trial court accepted the valuations proposed in any of
the exhibits. All three of the exhibits were used primarily during Pamela's cross-
examination, and for a good reason—the factual question of the actual value of the tools
and musical equipment was not at issue. Rather, as indicated above in our discussion of
Pamela's fourth assigned error (and as the court specifically stated at the commencement
of the hearing) there was "one issue with respect to this 60(B)," that "Logan did not disclose
* * * personal property at the time of the negotiated settlement." (Emphasis added.) (Tr.
at 9.) It is clear from the record that all three exhibits were permissibly used to establish
only that Pamela knew (or had reason to suspect) that the items were claimed to exist and
No. 21AP-206 10
that the claimed value of those items was greater than $20,000 at the time she entered into
the divorce decree.
{¶ 14} We must reiterate that all three of the exhibits were admitted subject to her
general objections that they did not prove that the items existed or had any specific value.
(Tr. at 126-29.) The issue before the court was disclosure, not value of property, and
Pamela's own pre-decree interrogatories established her knowledge of the claimed
existence and costs of that property. And because Pamela knew or had reason to suspect
that the value of the "tools and equipment" was greater than $20,000, she cannot establish
that she was defrauded and is therefore not entitled to Civ.R. 60(B) relief. Pamela's first,
second, and third assignments of error therefore lack merit and are overruled.
{¶ 15} For these reasons, Pamela's assignments of error are overruled, we hereby
affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic
Relations and Juvenile Branch denying her motion for Civ.R. 60(B) relief.
Judgment affirmed.
KLATT and MENTEL, JJ., concur.