Merkle v. Merkle

[Cite as Merkle v. Merkle, 2014-Ohio-81.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
KATHY J. MERKLE (NKA ZIGAN) : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 13-CA-31
MATTHEW C. MERKLE :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Licking County Court
of Common Pleas, Domestic Relations
Division Case No. 11DR1414
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 9, 2014
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
VICKY CHRISTIANSEN MICHELLE GRAMZA
JULIA K. FIX 32 N. Park Place, P.O. Box 309
172 Hudson Avenue Newark, OH 43058-0309
Newark, OH 43055-5750
[Cite as Merkle v. Merkle, 2014-Ohio-81.]
Gwin, P.J.
{¶1} Appellant appeals the March 15, 2013 judgment entry of the Licking
County Court of Domestic Relations denying appellant’s motion for reconsideration.
Facts & Procedural History
{¶2} On February 11, 2013, the Licking County Court of Domestic Relations
entered a judgment entry and decree of divorce to both appellant Kathy Merkle (nka
Zigan) and appellee Matthew Merkle based on incompatibility. In the divorce decree, the
trial court divided all the marital property, financial accounts, retirement accounts, and
personal property. The trial court found that a $30,000 loan taken out by appellant
against her retirement account was marital debt that appellant is responsible for paying
and awarded appellee $63,500 of appellant’s $152,000 retirement account. The trial
court also divided all household goods and property, specifically listed the items that the
court found to be appellee’s separate non-marital property, and also included a list of
items the court found to be marital property awarded to appellee. Appellant was
awarded the balance of the household goods and personal property in her possession.
The trial court found this division to be “equitable if not equal.” In the paragraphs
regarding the retirement accounts and the personal property division, the trial court
stated that, “the court retains jurisdiction to effectuate the meaning of this paragraph.”
{¶3} The trial court noted on its judgment entry and decree of divorce that “this
is a final appealable order.” Neither appellant nor appellee filed an appeal of the trial
court’s February 11, 2013 judgment entry and divorce decree. On February 28, 2013,
appellant filed a “motion for reconsideration” of items in the judgment entry and decree
of divorce on the issues of retirement and personal property. Appellant first argued that
Licking County, Case No. 13-CA-31 3
because the $30,000 loan against appellant’s 401(k) was found to be a marital debt, the
trial court was incorrect when it awarded appellee $63,500 of appellant’s retirement
account because the $30,000 was not included in the trial court’s computation of
appellee’s interest in appellant’s retirement account. Further, that the trial court should
correct the divorce decree because the premarital portion of appellant’s retirement
account was not included in the separate versus marital property determination.
Appellant requested both retirement issues be corrected pursuant to Civil Rule 60(A).
Appellant also argued there was an error regarding the division of personal property in
light of appellee’s responses to discovery interrogatories number 21 and 22 and thus it
was a mistake to award appellee a disproportionate share of the personal property
based on his discovery responses. Appellee filed a memorandum contra to appellant’s
motion for reconsideration on March 12, 2013, arguing appellant was requesting
substantive changes not permissible pursuant to Civil Rule 60(A).
{¶4} On March 15, 2013, the trial court entered a judgment entry denying
appellant’s motion for reconsideration. The trial court first stated that since the trial
judge who originally heard the divorce case had been appointed to another judicial
position, an administrative or visiting judge could not rule on the motion without hearing
the evidence heard by the original judge. However, the trial court went on to specifically
deny appellant’s motion for reconsideration because the motion went beyond a Civil
Rule 60(A) or simple nunc pro tunc correction of a mathematical or scriveners error.
The trial court determined the issues presented by appellant needed to be addressed by
an appeal of the February 11, 2013 divorce decree.
Licking County, Case No. 13-CA-31 4
{¶5} Appellant appeals the March 15, 2013 judgment entry of the Licking
County Court of Domestic Relations, assigning the following as error:
{¶6} “I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT DENIED APPELLANT’S MOTION FILED PURSUANT TO CIV.R. 60 WITHOUT
RULING ON THE MEIRTS OF THE MOTION.
{¶7} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT FAILED TO APPOINT A VISITING JUDGE TO RULE ON THE MERITS OF
APPELLANT’S MOTION.
{¶8} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT DENIED APPELLANT’S MOTION FILED PURSUANT TO CIV.R. 60 WHEN
APPELLANT WAS ENTITLED TO RELIEF UNDER 60(B)(1) AND (5).”
I.
{¶9} Appellant argues the trial court erred and abused its discretion when it
denied appellant’s motion filed pursuant to Civil Rule 60(A) without ruling on the merits
of the motion. We disagree.
{¶10} Appellant first contends the trial court failed to rule on the merits of her
motion for reconsideration. However, the trial court specifically denied the motion and
found it was beyond a Civil Rule 60(A) clerical error.
{¶11} Appellant next asserts the trial court erred in denying her motion for
reconsideration pursuant to Civil Rule 60(A). We first note that no motion for
reconsideration exists under the Ohio Civil Rules. Casey v. Casey, 5th Dist. Guernsey
No. 00-CA-20, 2001 WL 326863 (April 3, 2001). Further, we will not reverse a trial
court’s decision regarding relief from judgment pursuant to Civil Rule 60(A) absent an
Licking County, Case No. 13-CA-31 5
abuse of discretion. Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994).
To find an abuse of discretion, this court must determine that the trial court’s decision
was unreasonable, arbitrary, or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶12} Civil Rule 60(A) permits a court to correct only clerical errors arising from
an oversight or omission and states that, “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.” Civ.R. 60(A). The Ohio Supreme Court
has stated that, “Civil Rule 60(A) permits a trial court, in its discretion, to correct clerical
mistakes which are apparent on the record, but does not authorize a trial court to make
substantive changes in judgments.” State ex rel. Litty v. Leskovyansky, 77 Ohio St.3d
97, 100, 671 N.E.2d 236 (1996). Under Civil Rule 60(A), a clerical mistake refers to a
mistake or omission that is mechanical in nature and does not involve a legal decision
or judgment. Thurston v. Thurston, 10th Dist. Franklin No. 02AP-555, 2002-Ohio-6746.
{¶13} The requests made by appellant in her motion go beyond the scope of
merely correcting a clerical error or blunder in the execution, as the requested
alterations would substantively alter the divorce decree. The trial court specifically
considered the $30,000 loan when making its final division of the pension and
retirement accounts and the trial court expressly found an equitable division of the
assets and debt was made in this case after consideration of the factors set forth in R.C.
3105.171. Appellant also asserts the trial court made an inadvertent mistake when it
awarded appellee a disproportionate share of the personal property based on his
Licking County, Case No. 13-CA-31 6
discovery responses and when it failed to include the premarital portion of appellant’s
retirement account in the separate versus marital property determination. However, the
trial court divided the personal property in detail and found the division to be “equitable if
not equal.” Further, the trial court determined that the “asset/debt distribution in this
particular case [is] equitable if not equal” after a review pursuant to R.C. 3105.171(C)(1)
and (F). The alterations requested by appellant to the trial court’s decision require legal
decisions and judgments, not merely the correction of mechanical mistakes. To alter
the manner in which the retirement accounts and personal property are divided would
constitute a substantive change to the court’s judgment. If a mistake was made in the
divorce decree as appellant asserts, it was not a clerical mistake and we would have to
review the trial court’s decision in conjunction with the evidence presented to the trial
court. Civil Rule 60(A) cannot be utilized to correct such a mistake and cannot be
applied to change something which was deliberately done. Melkerson v. Melkerson,
11th Dist. Geauga No. 2009-G-2887, 2009-Ohio-6381. Accordingly, the trial court did
not abuse its discretion in denying appellant’s motion pursuant to Civil Rule 60(A).
{¶14} Further, appellant attempts to utilize Civil Rule 60(A) as a substitute for
appeal. Civil Rule 60(A) is not a substitute for a timely appeal of a judgment. Thurston
v. Thurston, 10th Dist. Franklin No. 02AP-555, 2002-Ohio-6746; see also Doe v.
Trumbull County Children Services Bd., 28 Ohio St.3d 128, 502 N.E.2d 605 (1986). As
discussed below, the divorce decree in this case was a final, appealable order and
resolved all the outstanding issues between the parties. The issues raised by appellant
in her motion for reconsideration were cognizable on direct appeal from the February
11, 2013 divorce decree and are a challenge to the correctness of the trial court’s
Licking County, Case No. 13-CA-31 7
original decision on the merits. Such a challenge could have been raised by a way of
appeal of the divorce decree and Rule 60(A) relief is not available as a substitute for
such appeal.
{¶15} Appellant argues the trial court abused its discretion in failing to grant her
motion because the trial court specifically retained jurisdiction to “effectuate the
meaning” of the language in the paragraphs regarding the personal property and
retirement account division and that because this language was included, she was not
required to file a direct appeal of the divorce decree. We disagree.
{¶16} Appellant fails to cite any legal authority in support of her argument as
required by App.R. 16(A)(7). Further, R.C. 3105.171 governs the equitable division of
marital and separate property and provides that, “a division or disbursement of property
or a distributive award made under this section is not subject to future modification by
the court except upon the express written consent or agreement to the modification by
both spouses.” R.C. 3105.171(I). Retirement benefits accumulated during the marriage
are specifically listed in R.C. 3105.171(A)(3)(a) as marital property subject to equitable
division under R.C. 3105.171. Accordingly, the trial court lacks the statutory authority to
reserve jurisdiction to modify or alter the division of marital and separate property,
including retirement benefits, once the trial court enters the final divorce decree. Oliver
v. Oliver, 5th Dist. Tuscarawas No. 2011AP110044, 2012-Ohio-3483; Ortiz v. Ortiz, 7th
Dist. Jefferson No. 05JE6, 2006-Ohio-3488; Veidt v. Cook, 12th Dist. Butler No. 2003-
08-209, 2004-Ohio-3170; Robins v. Robins, 10th Dist. Franklin No. 04AP-1152, 2005-
Ohio-4969.
Licking County, Case No. 13-CA-31 8
{¶17} However, a trial court retains jurisdiction to enforce its orders and has the
power to construe its original property division and clarify ambiguous clauses as to
effectuate its judgment. Veidt v. Cook, 12th Dist. Butler No. 2003-08-209, 2004-Ohio-
3170. In her motion for reconsideration, appellant is not asking the trial court to clarify
an ambiguous clause in the divorce decree to effectuate the judgment or to enforce its
order. Rather, appellant is seeking substantive modifications of the divorce decree. In
this case, the trial court divided all of the assets, debts, and there are no issues in the
divorce decree left unresolved. The trial court found the divorce decree to be a final,
appealable order. Any objections to the trial court’s findings or rulings in the divorce
decree should have been raised in a direct appeal of the February 11, 2013 divorce
decree. Further, appellant’s request pursuant to Civil Rule 60(A) does not rely upon the
trial court’s continued or retained jurisdiction, but upon the trial court’s authority to
correct clerical mistakes. See Noble v. Noble, 10th Dist. Franklin No. 07AP-1045, 2008-
Ohio-4685.
{¶18} Accordingly, appellant’s first assignment of error is overruled.
II.
{¶19} Appellant next argues the trial court erred and abused its discretion in
failing to appoint a visiting judge to rule on the merits of her motion pursuant to Civil
Rule 63. We disagree. Civil Rule 63 provides that if a “judge before whom an action is
tried is unable to perform the duties to be performed * * * after * * * findings of fact and
conclusions of law are filed, another judge designed by the administrative judge * * *
may perform those duties * * *. Civil Rule 63.
Licking County, Case No. 13-CA-31 9
{¶20} We agree with appellant that the trial court stated at the beginning of its
entry denying her motion for reconsideration that since the trial judge who originally
heard the divorce case had been appointed to another judicial position, an
administrative or visiting judge could not rule on the motion without hearing the
evidence heard by the original judge. However, despite the inclusion of this language,
the trial court did rule on appellant’s motion in the March 15, 2013 judgment entry. The
trial court specifically found that appellant’s motion was “beyond a Civil Rule 60(A) or a
simple nunc pro tunc correction of a mathematical or scriveners error” and that the
issues cited by appellant in her motion for reconsideration “need to be addressed by
appeal.” The trial court further stated appellant’s “motion for reconsideration is denied.”
Accordingly, the administrative judge ruled on appellant’s motion and did not abuse his
discretion when he did not appoint a visiting judge to rule on appellant’s motion.
{¶21} Appellant’s second assignment of error is overruled.
III.
{¶22} Appellant asserts the trial court abused its discretion when it denied
appellant’s motion filed pursuant to Civil Rule 60(B), as appellant was entitled to relief
under Civil Rule 60(B)(1) and (5).
{¶23} Despite appellant’s argument that she included a Civil Rule 60(B) motion
in her motion for reconsideration, a review of the motion filed demonstrates that no Civil
Rule 60(B) motion or argument was included in her February 28th filing. The motion is
entitled “motion for reconsideration.” The first paragraph of the motion moves for
reconsideration pursuant to “Civil Rule 60.” However, in appellant’s memorandum of
support of her motion, she includes only Civil Rule 60(A) as a basis for the motion.
Licking County, Case No. 13-CA-31 10
Appellant fails to include any mention of Civil Rule 60(B) in the motion or memorandum
of support, including the section number under which she claims she is entitled to relief.
Appellant raises this argument for the first time on appeal. A party cannot assert new
arguments for the first time on appeal. Stores Realty Co. v. Cleveland, 41 Ohio St. 41,
42, 322 N.E.2d 629 (1975). Since appellant failed to argue Civil Rule 60(B) to the trial
court, this court will not review the issue on appeal. May v. Westfield Village L.P., 5th
Dist. No. 02-COA-051, 2003-Ohio-5023, citing Lippy v. Society Nat’l Bank, 88 Ohio
App.3d 33, 623 N.E.2d 108 (1993).
Licking County, Case No. 13-CA-31 11
{¶24} Based on the foregoing, we overrule appellant’s first, second, and third
assignments of error and affirm the March 15, 2013 judgment entry of the Licking
County Court of Domestic Relations.
By Gwin, P.J.,
Hoffman, J., and
Delaney, J., concur