Bencin v. Bencin

[Cite as Bencin v. Bencin, 2012-Ohio-4197.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
CATHLEEN BENCIN C.A. No. 10CA0097-M
11CA0113-M
Appellant
v.
APPEAL FROM JUDGMENT
THOMAS P. BENCIN ENTERED IN THE
COURT OF COMMON PLEAS
Appellee COUNTY OF MEDINA, OHIO
CASE No. 09 DR 0085
DECISION AND JOURNAL ENTRY
Dated: September 17, 2012
WHITMORE, Presiding Judge.
{¶1} Appellant, Cathleen Bencin (“Wife”), appeals from judgments of the Medina
County Court of Common Pleas, Domestic Relations Division. This Court dismisses.
I
{¶2} Wife filed a complaint for divorce from Thomas Bencin (“Husband”) in 2009.
The parties proceeded to trial in March 2010, and after two days of testimony entered into an in-
court settlement agreement. The court journalized the settlement agreement and granted the
divorce in August 2010. The court incorporated the transcript of the in-court settlement
agreement into its final judgment entry. Wife filed a timely appeal. Subsequently, Wife filed a
motion with the trial court to vacate the judgment entry pursuant to Civ.R. 60(B), and this Court
remanded for the trial court to rule on the motion. The trial court denied Wife’s motion, and she
2
filed a timely appeal. This Court granted Wife’s motion to consolidate her two appeals. She
now raises a total of three assignments of error for our review. For ease of analysis, we
rearrange several of the assignments of error.
II
Assignment of Error Number One
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
CONCLUDING THAT THE SETTLEMENT AGREEMENT REACHED IN
COURT AND READ INTO THE RECORD, CONSTITUTED A VALID AND
ENFORCEABLE CONTRACT WHERE THERE WAS FRAUD AND
MISREPRESENTATION, DURESS, UNDISCLOSED ASSETS, INCOMPLETE
TERMS, ASSETS NOT INCLUDED IN THE AGREEMENT, AND FAILURE
TO ADDRESS ALL ISSUES, ALL OF WHICH ROSE TO THE LEVEL OF
BEING UNCONSCIONABLE.
{¶3} In her first assignment of error, Wife argues that the court erred when it found that
the settlement agreement was an enforceable contract. Wife argues the settlement agreement is
unenforceable because, among other things, the settlement agreement does not fully dispose of
all assets.
{¶4} Before we may address the merits of Wife’s assignments of error, we must
determine whether this Court has jurisdiction to hear the appeal.
The Ohio Constitution limits an appellate court’s jurisdiction to the review of
final judgments of lower courts. * * * For a judgment to be final and appealable,
the requirements of R.C. 2505.02 and Civ.R. 54(B), if applicable, must be
satisfied. This Court has repeatedly found, most notably in Harkai [v. Scherba
Industries, Inc.], 136 Ohio App.3d [211,] 216 (9th Dist.2000), that in order to
constitute a final appealable order the content of the judgment must be definite
enough to be susceptible to further enforcement and provide sufficient
information to enable the parties to understand the outcome of the case. If the
judgment fails to speak to an area which was disputed, uses ambiguous or
confusing language, or is otherwise indefinite, the parties and subsequent courts
will be unable to determine how the parties’ rights and obligations were fixed by
the trial court. A divorce decree, which leaves issues unresolved, is not a final
order.
3
[Internal citations, quotations, and alterations omitted.] Parravani v. Parravani, 9th Dist. No.
25224, 2010-Ohio-3853, ¶ 4, quoting Baker v. Baker, 9th Dist. No. 09CA009603, 2009-Ohio-
6906, ¶ 5-6. See Civ.R. 75(F). “In the absence of a final, appealable order, this Court must
dismiss the appeal for a lack of subject matter jurisdiction.” Helmstedter v. Helmstedter, 9th
Dist. No. 24237, 2009-Ohio-3559, ¶ 9.
{¶5} Wife argues that the agreement is unenforceable because it fails to dispose of a
pre-marital promissory note. According to Wife’s testimony during trial, she had loaned
Husband money to purchase a car prior to their marriage. Wife introduced a notarized
promissory note that Husband had signed in favor of Wife for $29,500. Wife testified that no
payments had been made. On cross-examination, Wife agreed that she had not attempted to
collect on the loan for the past 15 years because they “were putting money into buying other
things.” Based on cross examination, it appears Husband disputed Wife’s assertion that he still
owed on the loan. However, the transcript of the settlement agreement and the journal entry are
both silent as to the promissory note. Because the promissory note had been identified as being
in dispute, the judgment entry, to be a final, appealable order, needed to detail its disposition.
See Baker at ¶ 5-6. See also Civ.R. 75(F).
{¶6} Wife further argues the agreement is unenforceable because it fails to dispose of
“property in the storage unit.” Wife testified that she believed there was a scooter and an all-
terrain vehicle in the storage unit. Wife had filed a motion to inventory the storage unit and
counsel informed the court at trial that it had not yet ruled on her motion. The court indicated
that it would grant Wife’s motion. Husband’s counsel then requested the court hear Husband’s
testimony before granting Wife’s motion to inventory because the property Wife was “referring
to [was] mostly not his property but the property of other people.”
4
{¶7} Neither the transcript of the in-court settlement agreement, nor the final judgment
entry mentions the scooter, the all-terrain vehicle, or the property in the storage unit generally.
Similar to the promissory note, this property had been identified as being in dispute. Therefore,
the judgment entry, to be a final, appealable order, needed to detail its disposition. See Baker,
2009-Ohio-6906, at ¶ 5-6. See also Civ.R. 75(F).
{¶8} Wife also argues the agreement is unenforceable because it fails to dispose of
Husband’s life insurance policy. At the beginning of trial, the parties stipulated to:
[t]here [being] a Best of America account with two, different life insurance
policies; one, 300,000 which is a whole life policy, one, 700,000 which is a term
policy both on the husband’s life, Mr. Bencin’s. There is a cash value in the life
insurance policy that lists 18,500, one of which 15,000 is a * * * loan to
somebody.
No further testimony was heard regarding the life insurance policies or the loan against it. There
is no mention of the life insurance policies in the transcript of the in-court settlement agreement,
nor are the policies mentioned in the judgment entry granting the parties’ divorce. The record is
unclear as to whether the life insurance policies were Husband’s pre-marital property or whether
they were in dispute. If the judgment is indefinite, “the parties and subsequent courts will be
unable to determine how the parties’ rights and obligations were fixed by the trial court.”
Parravani, 2010-Ohio-3853, at ¶ 4, quoting Baker, 2009-Ohio-6906, at ¶ 5-6. To be a final,
appealable order, a judgment granting a divorce must resolve all issues in dispute.
{¶9} Accordingly, we find the judgment entry was not a final, appealable order and,
therefore, we cannot reach the merits of whether the settlement agreement is enforceable with
respect to the property that was included. Wife’s appeal from the judgment entry of divorce is
dismissed for lack of jurisdiction.
5
Assignment of Error Number Three
THE TRIAL COURT ERRED IN DENYING PLAINTIFF’S MOTION FOR
RELIEF FROM JUDGMENT PURSUANT TO RULE 60(B)[.]
{¶10} In her third assignment of error, Wife argues the court erred when it denied her
motion to vacate the judgment entry incorporating the settlement agreement.
{¶11} Although a judgment granting or denying a Civ.R. 60(B) motion is, as a rule, a
final appealable order, “a party may seek [Civ.R.] 60(B) relief only from a final judgment.”
First Benefits Agency, Inc. v. Tri-County Bldg. Trades Welfare Fund, 131 Ohio App.3d 29, 34
(9th Dist.1998), quoting Busa v. Lasorella, 8th Dist. No. 67980, 1995 WL 264449, *3 (May 4,
1995). See also Civ.R. 60(B). Because we have concluded that the judgment entry was not a
final, appealable order, a motion to vacate judgment pursuant to Civ.R. 60(B) was not available.
First Benefits Agency, Inc. at 34. “[T]he denial of relief from a non-final order is, itself, not a
final appealable order.” Kalapodis v. Hall, 9th Dist. No. 22386, 2005-Ohio-2567, ¶ 10, quoting
Christian v. McFarland, 2d Dist. No. 15984, 1997 WL 337654, * 1 (June 20, 1997). The court’s
journal entry denying Wife’s Civ.R. 60(B) motion is not a final, appealable order. Therefore, we
dismiss her appeal from the denial of her Civ.R. 60(B) motion for lack of jurisdiction.
Assignment of Error Number Two
THE TRIAL COURT ERRED BY MERGING ALL TEMPORARY ORDERS
INTO A FINAL DECREE WITHOUT HOLDING A HEARING ON
PLAINTIFF’S MOTION TO SHOW CAUSE AGAINST DEFENDANT FOR
FAILING TO ABIDE BY THE TEMPORARY SUPPORT ORDER, WHICH
MOTION WAS FILED PRIOR TO THE FINAL JUDGMENT[.]
{¶12} In her second assignment of error, Wife argues the court erred when it entered
judgment without ruling on her motion to show cause. As discussed above, this appeal is not
taken from a final, appealable order, and therefore, this Court is without jurisdiction to consider
the merits of Wife’s argument.
6
III
{¶13} Wife’s appeal is dismissed for lack of jurisdiction.
Appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
DICKINSON, J.
BELFANCE, J.
CONCUR.
APPEARANCES:
JOAN JACOBS THOMAS, Attorney at Law, for Appellant.
JOYCE E. BARRETT and JAMES P. REDDY. JR., Attorneys at Law, for Appellee.