Hill v. Ross

[Cite as Hill v. Ross, 2013-Ohio-1903.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 99094 and 99122
TERESA A. HILL
PLAINTIFF-APPELLEE-
CROSS-APPELLANT
vs.
JAMES E. ROSS
DEFENDANT-APPELLANT-
CROSS-APPELLEE
JUDGMENT:
REVERSED AND REMANDED
Civil Appeals from the
Cuyahoga County Court of Common Pleas
Domestic Relations Division
Case No. D-230987
BEFORE: Stewart, A.J., Celebrezze, J., and Rocco, J.
RELEASED AND JOURNALIZED: May 9, 2013
ATTORNEY FOR APPELLANT-CROSS-APPELLEE
Kevin L. Starrett
Law Office of Kevin L. Starrett
17 1/2 N. Franklin Street
Chagrin Falls, OH 44022
ATTORNEY FOR APPELLEE-CROSS-APPELLANT
Jeffrey F. Slavin
Law Office of Jeffrey F. Slavin
The Standard Building
1370 Ontario Street, Suite 1810
Cleveland, OH 44113
MELODY J. STEWART, A.J.:
{¶1} In 1994, the court dissolved a marriage between
defendant-appellant-cross-appellee James Ross and plaintiff-appellee-cross-appellant
Teresa Hill according to the terms of a separation agreement that provided Ross would
pay for “all of the costs of a college education” for the parties’ two children. Ross
contributed to the college expenses, but did not bear the entire cost of those expenses.
When Ross’s child support obligation terminated in 2011, Hill filed a motion to show
cause why Ross should not be held in contempt for failing to pay all of the college
expenses. Ross responded by asking for relief from judgment on grounds that he never
agreed to pay all of the college expenses, that the separation agreement filed with the
petition for dissolution had no such requirement, and that the version containing the
college expenses provision had been given to the court either through mistake or fraud.
Despite finding Ross’s version of events to be “extremely credible,” a magistrate
nonetheless denied relief from judgment because the motion was untimely. The
magistrate refused to find Ross in contempt, but ordered that he pay $10,000 toward the
college expenses. On appeal, Ross argues that he is entitled to relief from judgment; Hill
cross-appeals and argues that the court erred by refusing to hold Ross liable for all of the
college costs.
I
{¶2} Ross first argues that the separation agreement attached to the dissolution was
the product of an error and that the court should have corrected its judgment by way of
Civ.R. 60(A). The magistrate found that Civ.R. 60(A) did not apply because the
disputed language relating to the payment of college expenses was substantive and to
delete it would cause a substantive change in the terms of the separation agreement.
{¶3} Civ.R. 60(A) states: “Clerical mistakes in judgments, orders or other parts
of the record and errors therein arising from oversight or omission may be corrected by
the court at any time on its own initiative or on the motion of any party and after such
notice, if any, as the court orders.”
{¶4} “‘Clerical mistakes’ are considered mechanical in nature — the so-called
‘blunders in execution’ — as opposed to substantive mistakes that result from an
application of discretion or judgment by the court.” Pursel v. Pursel, 8th Dist. No.
91837, 2009-Ohio-4708, ¶ 8, citing State ex rel. Litty v. Leskovyansky, 77 Ohio St.3d 97,
100, 1996-Ohio-340, 671 N.E.2d 236; Kuehn v. Kuehn, 55 Ohio App.3d 245, 247, 564
N.E.2d 97 (12th Dist.1988). When reviewing a claim raised under Civ.R. 60(A), we
must be mindful to consider the nature of the correction, rather than the effect of the
correction. Id., citing Brush v. Hassertt, 2d Dist. No. 21687, 2007-Ohio-2419, ¶ 28.
{¶5} The magistrate conducted a hearing on Ross’s motion to correct the record.
In findings of fact, she found that Ross did not have counsel at the time of the dissolution.
Hill had counsel and twice met with her attorney: the first time, she signed the
separation agreement making no provision for Ross’s payment of college expenses that
was later attached to the petition for dissolution; the second time, she and Ross both met
with the attorney to review the contents of the separation agreement. The separation
agreement presented to Ross at that time contained a clause requiring him to pay college
expenses. Ross objected to that clause and demanded that it be removed or he would not
sign the separation agreement. The attorney assured Ross that the clause would be
removed. The separation agreement that Ross did sign and that was filed with the
petition for dissolution did not contain the college expenses clause.
{¶6} Hill filed the petition for dissolution. The petition was referred to a
magistrate who conducted a dissolution hearing. The attorney did not attend that
hearing, and Hill conceded that she submitted to the court the judgment entry and
separation agreement that contained a clause requiring Ross to pay the college expenses.
Ross claimed that he neither saw nor reviewed that judgment entry on the day it was
presented to the magistrate. Indeed, he claimed to have been unaware that the college
expenses clause had been added to the separation agreement until Hill filed her motion to
have him held in contempt for failing to pay those expenses.
{¶7} We think the magistrate applied too narrow a view of Civ.R. 60(A) under the
circumstances of this case. While it is true that Civ.R. 60(A) is applied only to correct
clerical errors arising from oversight or omission, the court committed an error of
oversight by attaching to the dissolution entry a separation agreement that was different
from the one filed by the parties at the time they petitioned the court for a dissolution of
their marriage.
{¶8} The court had no authority, in the absence of objection or request for
modification, to enter a decree of dissolution on terms different from those proposed in
the settlement agreement offered in the petition for dissolution. See R.C. 3105.65(B) (if
“the court approves the separation agreement and any amendments to it agreed upon by
the parties, it shall grant a decree of dissolution of marriage that incorporates the
separation agreement.”) (Emphasis added.) “A separation agreement submitted in a
dissolution of a marriage is a binding contract between the parties and the court ‘cannot
unilaterally change the provisions of the agreement.’” Cutter v. Cutter, 8th Dist. No.
96375, 2012-Ohio-358, ¶ 13, quoting In re Adams, 45 Ohio St.3d 219, 220, 543 N.E.2d
797 (1989). As the supreme court has noted, “mutual consent is the cornerstone of our
dissolution law.” Knapp v. Knapp, 24 Ohio St.3d 141, 144, 493 N.E.2d 1353 (1986).
{¶9} The court’s judgment entry dissolving the parties’ marriage recognized the
limitations placed upon it by virtue of the parties’ separation agreement. It found that the
parties filed a petition for dissolution of their marriage “and that attached thereto was a
separation agreement signed by the parties which is fair, just and equitable.” The court
also confirmed that the parties had in open court “acknowledged that they were still in
agreement as to the terms thereof[.]”
{¶10} It is beyond debate from the language employed by the court that it intended
to dissolve the marriage according to the terms of the separation agreement attached to
the petition for dissolution (with one minor, inapplicable modification as noted). It is
equally beyond debate that Ross did not agree to pay the college expenses — the
magistrate found that “Mr. Ross’ testimony on this issue was extremely credible
especially given the fact that he was unemployed when the Petition for Dissolution was
filed January 25, 1994 and on the date of the Dissolution hearing.” The magistrate went
on to conclude that “it is beyond incredulous that an unemployed obligor would agree to
pay all of the costs of a college education for the children at the institution of their
choice.”
{¶11} By any measure, the court knew that the decree of dissolution that had been
entered in 1994 contained a separation agreement that did not conform to the separation
agreement attached to the petition for dissolution. That meant that the dissolution did not
reflect the mutual agreement of the parties. When the court learned that its dissolution
judgment did not conform to the separation agreement, it should have corrected the
decree of dissolution under Civ.R. 60(A) “to make changes in [the judgment] to reflect
what, in fact, was really decided by the trial court.” Binder v. Binder, 8th Dist. No.
88468, 2007-Ohio-4038, ¶ 8.
{¶12} Hill argues that the separation agreement attached to the dissolution was not
entered in error because Ross must have been aware that it contained the college costs
provisions. She maintains that the separation agreement that the court attached to the
decree of dissolution contained a revision to another paragraph of the agreement, initialed
by both parties. By her reckoning, Ross’s act of initialing a revision to this agreement
meant that he must have read the entire separation agreement and acquiesced to any
changes contained in the separation agreement, including the provision to pay college
costs.
{¶13} The parties’ initialing an amendment to the separation agreement did not
mean that Ross acquiesced to adding the college expenses to a modified agreement.
Indeed, by initialing their decision to modify the separation agreement that had been filed
with the petition for dissolution, the parties manifested their understanding that
modifications to the separation agreement should be memorialized. That the insertion of
Ross’s obligation to pay all college expenses was done without any memorialization by
the parties underscores the conclusion that it was included in the modified separation
agreement by error or fraud, either of which should have been corrected by the court
under Civ.R. 60(A).
{¶14} We therefore sustain this assignment of error, reverse, and remand to the
trial court with instructions to correct the decree of dissolution by deleting the reference
to Ross having the obligation to pay all of the college expenses of the parties’ children.
II
{¶15} As an alternative holding, and in addition to the court’s error in refusing to
correct the decree of dissolution by Civ.R. 60(A), we find that the court erred by
refusing to grant Ross relief from judgment under Civ.R. 60(B)(5). The magistrate
found that Ross’s motion raised grounds of mistake under Civ.R. 60(B)(1) or fraud under
Civ.R. 60(B)(3), both of which allow a motion for relief from judgment no more than one
year after the judgment. The magistrate found that under either ground, Ross’s
September 2011 motion for relief from judgment was untimely because it was filed more
than one year after the 1994 decree of dissolution.
To prevail on a motion brought under 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
proceeding was entered or taken.
GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146, 351 N.E.2d 113(1976), paragraph two of the syllabus.
{¶16} The failure to establish any of the three elements required for seeking relief
from judgment warrants denying the motion. Rose Chevrolet, Inc. v. Adams, 36 Ohio
St.3d 17, 520 N.E.2d 564 (1988).
{¶17} Although we agree with the magistrate that Civ.R. 60(B)(5) cannot be used
in place of more specific grounds listed in other provisions of Civ.R. 60(B), see, e.g.,
Cerney v. Norfolk & W. Ry. Co., 104 Ohio App.3d 482, 491, 662 N.E.2d 827, 833 (8th
Dist.1995), an exception to that rule applies in cases of fraud upon the court.
{¶18} “Pursuant to Civ.R. 60(B)(5), a court in appropriate circumstances may
vacate a judgment vitiated by a fraud upon the court.” Coulson v. Coulson, 5 Ohio St.3d
12, 448 N.E.2d 809 (1983), paragraph one of the syllabus. A “fraud upon the court” is
“[a]ny fraud connected with the presentation of a case to a court[.]” Id. at 15, citing 11
Wright & Miller, Federal Practice and Procedure 253, Section 2870 (1973). “Where an
officer of the court, e.g., an attorney, * * * actively participates in defrauding the court,
then the court may entertain a Civ.R. 60(B)(5) motion for relief from judgment.” Id.,
citing Toscano v. Commr. of Internal Revenue, 441 F.2d 930, 933 (9th Cir.1971).
{¶19} Hill was not an officer of the court — she acted pro se when she delivered a
judgment entry granting a dissolution of the marriage according to the terms of a
separation agreement that was different from the one the parties attached to their petition
for dissolution. She testified, however, that the separation agreement that she submitted
along with the dissolution entry requested by the court had been prepared for her by an
attorney. Ross testified that this was the same attorney who assured him that any
language relating to college expenses would be deleted and not submitted to the court.
{¶20} Based on these facts as found by the magistrate, Ross had sufficient grounds
for seeking relief from judgment under Civ.R. 60(B)(5) on grounds that the attorney who
prepared the judgment entry perpetrated a fraud upon the court. That fraud consisted of
preparing a judgment entry that contained terms different from the ones agreed to by the
parties in their petition for dissolution. As we earlier noted, the court had no authority to
dissolve the marriage by unilaterally changing the terms of the separation agreement, so it
had no reason to suspect that a judgment entry prepared at its own request would differ in
any respect from the separation agreement contained in the petition unless the parties
expressly acknowledged their intent to modify the agreement after filing the petition.1
The attorney who prepared the separation agreement is deceased. He was indefinitely
1
suspended from the practice of law in 1995 on complaints involving, among other things, moral
turpitude and conduct that adversely reflects on the fitness to practice law. See Office of
Disciplinary Counsel v. Orr, 72 Ohio St.3d 241, 1995-Ohio-256, 648 N.E.2d 1349. The facts in that
case show that the attorney had a longstanding addiction to prescription narcotics and pleaded no
{¶21} It is unclear whether Hill had knowledge of the alteration. She testified that
she was aware that the separation agreement attached to the decree of dissolution
contained the provision requiring Ross to pay all college expenses. But she conceded
that she did not make a demand on him to pay those expenses until 2010 — after Ross’s
child support obligation terminated and the Cuyahoga Support Enforcement Agency
informed her that he had overpaid his support obligation. As the magistrate found, “Mrs.
Hill testified that she did not pursue collection of any funds that she paid for college
tuition and expenses since 2005; and that she never sent a tuition letter to Mr. Ross for
[either child] over the years.” Indeed, Hill presented no documentation of any kind to
verify the amount she spent for college expenses. As Ross argued, Hill’s actions in
failing to document expenses and waiting more than five years to demand reimbursement
were not those of a person who believed that she was entitled to reimbursement of college
expenses beginning in 2004, the year when the first child began attending college. By
finding Ross to be “extremely credible,” the magistrate essentially endorsed his argument
that Hill herself was unaware at the time the court dissolved the marriage that Ross was
solely responsible for college expenses.
{¶22} We conclude that the court erred by failing to consider whether Ross’s
motion for relief from judgment set forth grounds that fell within the Civ.R. 60(B)(5)
provision for fraud upon the court. Nevertheless, this error is superseded by the court’s
contest to felony counts of illegally processing drug documents in violation of R.C. 2925.23. He
received treatment in lieu of conviction and spent a great deal of time in rehabilitation for his drug
addition.
failure to correct the obvious clerical error. This disposition necessarily moots Hill’s
cross-appeal.
{¶23} This cause is reversed and remanded to the trial court for further
proceedings consistent with this opinion.
It is ordered that defendant-appellant-cross appellee recover of
plaintiff-appellee-cross-appellant his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas — Domestic Relations Division to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and
KENNETH A. ROCCO, J., CONCUR