Carnes v. Carnes

[Cite as Carnes v. Carnes, 2015-Ohio-2925.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
MOLLY K. CARNES, : APPEAL NO. C-140520
TRIAL NO. DR-1400169
Plaintiff-Appellant, :
vs. : O P I N I O N.
FRANK CARNES, JR., :
Defendant-Appellee. :
Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division
Judgment Appealed from is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: July 22, 2015
Phillips Law Firm, Inc., and Alfred Wm. Schneble III, for Plaintiff-Appellant,
O’Connor Mikita & Davidson LLC and Michael J. O’Connor, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Presiding Judge.
{¶1} Plaintiff-appellant Molly K. Carnes appeals from the judgment of the
Hamilton County Court of Common Pleas, Domestic Relations Division, denying her
Civ.R. 60(B) motion to set aside the divorce decree that terminated her “marriage” to
defendant-appellee Frank Carnes, Jr. Molly moved to set aside the decree several
months after the divorce had become final, claiming that the marriage was void
because information she had subsequently discovered demonstrated that Frank had
a wife at the time of the marriage. For the reasons that follow, we reverse the trial
court’s judgment, set aside the decree of divorce, and remand the cause for further
proceedings.
I. Background Facts and Procedure
{¶2} The parties married in November 2004 and had no children. In
January 2014, Molly filed a complaint for divorce under R.C. 3105.01(K), on the
ground of incompatibility. She submitted with her complaint a marital settlement
and separation agreement (“separation agreement”), which was signed by both
parties, divided the marital property and obligations, and contained a clause that
precluded the separation agreement’s merger into a contemplated decree of divorce.
The settlement agreement, in part, required Molly to pay Frank $15,000 for his
portion of the marital equity in the marital residence and to transfer to Frank an IRA
retirement account.
{¶3} Frank consented to Molly’s request for the divorce. On April 1, 2014,
the trial court granted the divorce and adopted and incorporated the parties’
separation agreement into the decree of divorce.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} On June 16, 2014, Molly moved to vacate the divorce decree. She
contended that her marriage to Frank was void because Frank had a spouse named
Tricia Jean Green at the time of the marriage, and that she should have the
opportunity to terminate her marriage on the basis of this newly discovered bigamy.
She also claimed that Frank had defrauded her, and that she had timely moved for
relief from the judgment. The trial court held a hearing to verify Molly’s facts before
ruling on her motion.
{¶5} At the hearing, Molly testified that an unusual posting by Tricia on
Frank’s son’s Facebook page that she had observed two weeks after the finalization of
the divorce compelled her to view Tricia’s Facebook page. There Molly had observed
posts in which Tricia indicated that she had married Frank in 1996 in Dearborn
County, Indiana, and that she remained his wife. Molly undertook an expansive
search of public records and confirmed Frank’s and Tricia’s marriage in 1996, but
she was unable to find any documentation of the termination of Frank’s and Tricia’s
marriage.
{¶6} Molly introduced several exhibits at the hearing, including the
marriage certificate of Frank and Tricia issued in Dearborn County, Indiana,
printouts of several Facebook pages containing Tricia’s mention of her marriage to
Frank, and Molly’s and Frank’s marriage license application in which Frank had
indicated that he had not been previously married.
{¶7} In opposing Molly’s motion, Frank testified that he and Tricia had
married in Dearborn County, Indiana, in 1996, while he was incarcerated in the
Dearborn County Justice Center, but that he believed that the marriage had been
“overturned.” His belief was based on a note requesting the dissolution that he had
submitted to a police officer at the jail one week after his marriage to Tricia.
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OHIO FIRST DISTRICT COURT OF APPEALS
Although Frank recalled that the note had been returned to him marked “granted,”
he conceded that he no longer had the document and that Dearborn County had no
record of it or any other record of the purported termination of the marriage.
{¶8} Importantly, contrary to Molly’s testimony, Frank claimed that Molly
had known about his marriage to Tricia and the purported dissolution. Ultimately,
though, he claimed to be just as surprised as Molly to learn that Dearborn County did
not have any record of his dissolution.
{¶9} Frank urged the court to deny Molly’s motion, even though he
conceded that Molly had demonstrated her ability to present a legitimate defense if
relief were granted. The trial court apparently adopted Frank’s position and denied
the motion to set aside the divorce decree. Molly now appeals, assigning as error the
trial court’s “fail[ure] to set aside the divorce decree.”
II. Analysis
{¶10} We review the trial court’s denial of the Civ.R. 60(B) motion under an
abuse-of-discretion standard. Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d
914 (1994); Scheper v. McKinnon, 177 Ohio App.3d 820, 2008-Ohio-3964, 896
N.E.2d 208, ¶ 8 (1st Dist.). Therefore, the trial court’s decision will not be reversed
unless it is arbitrary, unconscionable, or unreasonable. Scheper at ¶ 8. “An
unreasonable decision is one that no sound reasoning process supports.” Bank of
N.Y. Mellon v. Martin, 1st Dist. Hamilton No. C-140314, 2015-Ohio-2531, ¶ 26.
{¶11} Civ.R. 60(B) states in part:
On motion and upon such terms as are just, the court
may relieve a party or his legal representative from a
final judgment * * * for the following reasons: (1)
mistake, inadvertence, surprise or excusable neglect; (2)
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OHIO FIRST DISTRICT COURT OF APPEALS
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.
{¶12} To prevail on her motion under Civ.R. 60(B), Molly was required to
demonstrate that she has a meritorious defense or claim to present if relief is
granted; that she is entitled to relief under one of the grounds set forth in Civ.R.
60(B)(1)-(5); and that she made the motion within a reasonable time, and where the
grounds of relief are found in Civ.R. 60(B)(1), (2), or (3), not more than one year
after the judgment of the court granting the divorce decree. See GTE Automatic
Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976),
paragraph two of the syllabus.
{¶13} Civ.R. 60(B) was adopted to provide an exception to the “finality of
judgment rule,” and allows for relief from judgment under the proper circumstances
when it is in the “interest of fairness and justice.” Adomeit v. Baltimore, 39 Ohio
App.2d 97, 101, 316 N.E.2d 469 (8th Dist.1974). We must “liberally construe” this
“remedial rule.” Blasco v. Mislik, 69 Ohio St.2d 684, 685, 433 N.E.2d 612 (1982).
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OHIO FIRST DISTRICT COURT OF APPEALS
A. Meritorious Claim to Present
{¶14} The first issue we review is whether Molly sufficiently demonstrated
that she has a meritorious claim to present if relief is granted. Molly argues in part
that if the decree of divorce is set aside, she has a meritorious claim to present, in
that she is entitled to a divorce or annulment on the ground that Frank had a living
spouse at the time of the marriage. We agree.
{¶15} In Ohio, a marriage is presumed to continue until the death of a
spouse or the entry of a court decree dissolving the marriage. Indus. Comm. v. Dell,
104 Ohio St. 389, 401, 135 N.E. 669 (1922). Where two marriages have been
“solemnized” and the record is silent as to whether there has been a divorce of the
parties to the first marriage, there is a presumption that the status of the parties to
the first marriage continues. Id. at paragraph three of the syllabus, cited in Kaur v.
Bharmota, 182 Ohio App.3d 696, 2009-Ohio-2344, 914 N.E.2d 1087, ¶ 8 (10th
Dist.). The burden is on the party claiming the validity of the second marriage to
overcome the presumption. Id. If that presumption is not overcome, the second
marriage is determined to be bigamous and void. See Evans v. Indus. Comm., 166
Ohio St. 413, 414, 143 N.E.2d 705 (1957); Dibble v. Dibble, 88 Ohio App. 490, 511,
100 N.E.2d 451 (5th Dist.1950).
{¶16} Although a bigamous marriage is void, Darling v. Darling, 44 Ohio
App.2d 5, 7, 335 N.E.2d 708 (8th Dist.1975), the domestic-relations statutes allow for
a divorce. See Eggleston v. Eggleston, 156 Ohio St. 422, 103 N.E.2d 395 (1952)
(interpreting similar predecessor law under the General Code), cited in Bubsey v.
Oleyar, 8th Dist. Cuyahoga Nos. 76226 and 76267, 2000 Ohio App. LEXIS 2255(May 25, 2000). Where a divorce is sought in this situation, the party seeking the
divorce must proceed on the ground that the other party had a husband or wife at the
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OHIO FIRST DISTRICT COURT OF APPEALS
time of the marriage, as provided in R.C. 3105.01(A). See Bubsey, citing Eggleston at
paragraph one of the syllabus. A party in that situation may alternatively seek an
annulment on the same grounds. See R.C. 3105.31(B).
{¶17} Thus, Molly met the first prong of the Civ.R. 60(B) test as she
demonstrated that she has a meritorious claim to present if relief is granted—the
ground for divorce set forth in R.C. 3105.01(A) or the ground for an annulment set
forth in R.C. 3105.31(B).
B. Ground for Relief
{¶18} The next issue is whether Molly stated one of the grounds for relief
under Civ.R. 60(B). Molly argues that relief was most appropriate on the basis of
newly discovered evidence, in accordance with Civ.R. 60(B)(2). But we disagree that
Civ.R. 60(B)(2) was the operable provision.
{¶19} To qualify as newly discovered evidence as contemplated under Civ.R.
60(B)(2), the new evidence must not have been discoverable by due diligence within
the time limits set forth for a motion for a new trial. See Cuyahoga Support
Enforcement Agency v. Guthrie, 84 Ohio St.3d 437, 442, 705 N.E.2d 318 (1999);
Smith v. Smith, 8th Dist. Cuyahoga No. 83275, 2004-Ohio-5589, ¶ 16. Here, the
evidence of the bigamy was available when Molly filed for divorce. And with due
diligence, she could have discovered the bigamy in time to move for a new trial under
Civ.R. 59(B).
{¶20} But Molly never looked, because Frank’s marital status at the time of
his marriage to Molly was not an issue in the divorce proceedings. According to the
testimony, both parties believed that their marriage was valid; Molly filed for divorce
on the ground of incompatibility, as set forth in R.C. 3105.01(K), and Frank did not
challenge that basis.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} Although Molly cannot be afforded relief under Civ.R. 60(B)(2), the
operative facts that she presented in support of her motion satisfied the condition of
“mistake” as contemplated by Civ.R. 60(B)(1). She demonstrated that she filed for
divorce under R.C. 3105.01(K) under the misconception that she was legitimately
married to Frank.
{¶22} While Molly did not refer to Civ.R. 60 (B)(1) or use the term “mistake”
when presenting this issue in the trial court proceedings and in her argument on
appeal, this issue was necessarily a subpart of her motion to vacate based on her
recent discovery of the bigamy. Thus, the evidentiary basis for this issue was
adduced before the trial court, Frank had the opportunity to challenge it, and this
court may address it, even if Molly did not articulate it as such, unless we put form
over substance, in contradiction to the remedial purpose of Civ.R. 60(B). See C.
Miller Chevrolet, Inc. v. Willoughby Hills, 38 Ohio St.2d 298, 301, 313 N.E.2d 400(1974) (“[I]t is evident from the discretionary language employed in App.R. 12(A)
that a court of appeals may pass upon an error which was neither assigned nor
briefed by a party.”); State v. Peagler, 76 Ohio St.3d 496, 668 N.E.2d 489 (1996),
syllabus (“While an appellate court may decide an issue on grounds different from
those determined by the trial court, the evidentiary basis upon which the court of
appeals decides a legal issue must have been adduced before the trial court and made
a part of the record thereof.”).
{¶23} Frank merely argues now, as he did in the trial court, that there is
conflicting evidence concerning when Molly learned of his marriage to Tricia and
whether his marriage to Tricia was ever terminated. But this first identified conflict,
as explained below, is irrelevant to our analysis because there is no conflict in the
evidence with respect to the fact that Molly learned of the bigamy after the divorce.
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OHIO FIRST DISTRICT COURT OF APPEALS
The second identified conflict is not a conflict—Frank failed to overcome the
presumption that his marriage to Tricia continued. See Dell, 104 Ohio St. 389, 135
N.E. 669, at paragraph three of the syllabus; Evans, 166 Ohio St. at 414, 143 N.E.2d
705.
{¶24} The trial court, in ruling on Molly’s motion to vacate the divorce
decree, appeared to focus solely on Molly’s contention that she only recently had
discovered that Frank and Tricia had married. While the court found that claim
dubious, the court failed to consider that the evidence only showed that at the time of
Molly’s and Frank’s divorce, both Molly and Frank had believed that their marriage
was valid and not void due to the purported bigamy. This evidence established that
the mistake was a mutual mistake of a material fact and, thus, a ground to vacate the
decree of divorce. See Smith, 8th Dist. Cuyahoga No. 83275, 2004-Ohio-5589, at
¶ 17.
C. Timeliness of the Motion
{¶25} The final issue is whether Molly’s motion was timely filed. Under the
rule, the motion must be made within a reasonable time, and where the
circumstances presented fall under Civ.R. 60(B)(1), no later than one year.
{¶26} In this case, Frank has never challenged the timeliness of the motion,
and the trial court did not expressly address this issue. But the record demonstrates
that Molly filed the motion to vacate less than three months after the issuance of the
divorce decree, after undertaking an exhaustive search of the public records to
substantiate Tricia’s claim that she remained married to Frank. We determine under
these facts that the motion was timely filed.
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OHIO FIRST DISTRICT COURT OF APPEALS
D. Abuse of Discretion
{¶27} Considering this record, we conclude that the trial court abused its
discretion when it denied Molly’s motion to set aside the divorce decree, as the
court’s decision cannot be supported by any sound reasoning process. Although a
claim under Civ.R. 60(B) requires a careful balancing of the two “conflicting
principles of finality and perfection,” Guthrie, 84 Ohio St.3d at 441, 705 N.E.2d 318,
this case does not involve a determination that makes finality most compelling, such
as parentage, visitation, or support of a minor. See Strack, 70 Ohio St.3d 172, 637
N.E.2d 914. While there is a compelling need for finality in the termination of
marriages, see In re Whitman, 81 Ohio St.3d 239, 243-243, 690 N.E.2d 535 (1998),
there is nothing in the record to suggest that either Molly or Frank has remarried
since the entry of the divorce decree.
{¶28} Molly’s motivation for moving to vacate is a factor to be considered
also in determining whether she may obtain that relief. See id. at 243. Frank argues
that she was motivated by a desire to avoid her financial obligations to him under the
separation agreement. But that separation agreement, by its own terms, is a contract
that did not merge into the decree of divorce. Therefore, Molly’s desire to avoid
those obligations should have been afforded little weight in determining whether the
decree that misrepresents the legal relationship between the parties should be set
aside.
{¶29} The court has an important interest in correcting the record, and
Civ.R. 60(B) should be used when it is equitable to do so. See Tom Sweeney, Inc. v.
Porter, 1st Dist. Hamilton No. C-980337, 1999 Ohio App. LEXIS 1914 (Apr. 30,
1999). Thus, we sustain the assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
III. Conclusion
{¶30} Because Molly established that the parties were mistaken as to the
validity of their marriage, that she should have proceeded under a different statutory
provision in terminating her marriage, and that she timely filed her Civ.R. 60(B)
motion, she was entitled to relief from judgment. Accordingly, we reverse the trial
court’s judgment denying Molly’s Civ.R. 60(B) motion, vacate the divorce decree,
and remand this cause for further proceedings consistent with the law and this
opinion.
Judgment reversed and cause remanded.
MOCK, J., concurs
DEWINE, J. dissents.
D E W INE , J., dissenting.
{¶31} I must respectfully dissent. The majority in this case exceeds the
appropriate limits of appellate review by choosing to upset a final judgment on a
ground that was not raised below and that finds only tenuous support in the record.
{¶32} A tenet of our system of review is the idea that appellate courts should
not ordinarily pass on issues not raised in the trial court. We don’t impose this rule
to be pedantic or mean-spirited; rather, we adhere to it because it advances not only
the orderly administration of justice but also the interests of fundamental fairness.
In the words of the Supreme Court, “[f]airness, which is required for the operation of
the adversary system of justice, requires at least that the parties be allowed in the
trial court to present evidence that would support or refute the legal theory
addressed by the court of appeals.” Peagler, 76 Ohio St.3d at 499, 668 N.E.2d 489.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶33} The majority grants relief under Civ.R. 60(B)(1), which allows for relief
from judgment for mutual “mistake.” In the trial court, Molly sought relief under
Civ.R. 60(B)(3) for fraud. She also made passing reference to “newly discovered
evidence,” a basis for relief under Civ.R. 60(B)(2). Nowhere was any mention made
of “mistake” as a basis for relief. Frank’s attorney, we may presume, tailored the
evidence presented to the legal arguments raised. We have no way of knowing if he
would have presented anything different had the issue been one of mutual mistake.
Thus, it seems fundamentally unfair for the majority to decree that the judgment be
reopened for a mutual mistake when that argument was not raised below.
{¶34} Not only was mistake not presented below, it was not raised here
either. The sole issue presented for review was that Molly was entitled to relief
based on newly discovered evidence under Civ.R. 60(B)(2). We should be hesitant
to reverse the judgment of a trial court for a reason not even raised by the parties in
their briefs.
{¶35} The evidence that the majority bases its decision on is not all that
strong, either. In order to find mutual mistake, it had to credit Frank’s rather
incredulous story that he engaged in a sham marriage, which he believed was
annulled because of some note he received from prison officials that he had in his
possession a few years ago but has now lost. It had to discount the evidence
introduced from Tricia’s Facebook posts that made the marriage seem like much
more than was represented by Frank. And the court had to create its own view of
Molly’s testimony. At trial, she testified she knew nothing about Frank’s marriage to
Tricia. The trial court didn’t believe her, concluding that her “testimony concerning
her 10-year marriage to Husband and her knowledge, or lack thereof, concerning
Husband’s prior wife (wives) did not suffice to convince the Court.” But the majority
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OHIO FIRST DISTRICT COURT OF APPEALS
nonetheless concludes “that the evidence only showed that at the time of the divorce,
both Molly and Frank had believed their marriage was valid and not void due to the
purported bigamy.”
{¶36} This view of the evidence seems a stretch, at best. While there was no
evidence presented at the hearing directly contradicting the unadvanced mutual
mistake theory, the evidence in support was extremely weak. It hardly seems the
type of evidence an appellate court should rely upon in reversing a trial court’s
decision and disturbing a final judgment.
{¶37} A court abuses its discretion when its “attitude is unreasonable,
arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983). Finding nothing of the kind in the trial court’s decision, I
dissent.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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