Kane v. Kane , 120 N.E.3d 375 ( 2018 )


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  • [Cite as Kane v. Kane, 
    2018-Ohio-3971
    .]
    IN THE COURT OF APPEALS
    ELEVENTH APPELLATE DISTRICT
    GEAUGA COUNTY, OHIO
    CHARLES P. KANE,                                  :        OPINION
    Plaintiff-Appellant,             :
    CASE NO. 2017-G-0145
    - vs -                                    :
    MARYLU A. KANE,                                   :
    Defendant-Appellee.              :
    Appeal from the Geauga County Court of Common Pleas, Case No. 2013 DC 000971.
    Judgment: Affirmed.
    Joyce E. Barrett and James P. Reddy, Jr., 55 Public Square, Suite 1260, Cleveland,
    OH 44113 (For Plaintiff-Appellant).
    Marylu A. Kane, pro se, 3648 Lexington Court, Westlake, OH 44145 (Defendant-
    Appellee).
    CYNTHIA WESTCOTT RICE, J.
    {¶1}     Appellant, Charles P. Kane, appeals from the judgment of the Geauga
    County Court of Common Pleas, denying his Civ.R. 60(B) motion for relief from
    judgment without a hearing.           At issue is whether the trial court erred in summarily
    overruling his motion, which sought relief from judgment of an order to pay spousal
    support journalized in the parties’ final decree of divorce.          Pursuant to the Ohio
    Supreme Court’s decision in Morris v. Morris, 
    148 Ohio St.3d 138
    , 
    2016-Ohio-5002
    , we
    affirm the trial court.
    {¶2}   The parties were divorced by final decree on November 9, 2015. The
    parties, via separation agreement, mutually agreed on appellant’s spousal support
    obligation and this agreement was incorporated into the final decree. The agreement
    provides:
    {¶3}   Husband shall pay directly to Wife, as and for spousal support, the
    sum of Four Thousand Seven Hundred Fifty Dollars ($4,750.00) per
    month, commencing November 1, 2015, and continuing for a period
    of seventy-one (71) additional months, subject to earlier termination
    upon the death of the Husband or Wife, Wife’s remarriage, or
    Wife’s cohabitation with an unrelated person * * * Husband and
    Wife agree that no court of competent jurisdiction shall retain
    jurisdiction to modify either the amount or duration [of] this spousal
    support award.
    {¶4}   The divorce decree expressly reiterated the substance of the foregoing
    agreed-upon spousal-support obligation, including the explicit declination of jurisdiction
    to modify the obligation.
    {¶5}   On November 8, 2016, appellant filed a motion for relief from judgment,
    pursuant to Civ.R. 60(B)(1), (2), (4), and (5), requesting the court to vacate or modify
    the spousal-support and property-division provisions of the decree. Appellant argued,
    due to the profound financial downturn of his two businesses, he was unable to meet his
    obligations. He claimed his financial troubles were caused by the emergence of two
    competitor businesses in the immediate vicinity of his businesses. He therefore alleged
    compliance with the orders was impossible.        Appellant requested a hearing at the
    court’s earliest convenience.
    {¶6}   A hearing was scheduled for January 4, 2017, and continued, at
    appellee’s request, until February 22, 2017.        Meanwhile, appellee moved for an
    “emergency temporary restraining order/escrow of funds.”         In the motion, appellee
    sought a restraining order preventing appellant from dissipating proceeds from a real
    2
    estate sale upon which he was closing.            Appellee alleged the proceeds would be
    approximately $235,000 and appellee claimed, without the order, appellant could
    expend the funds and deprive her of her support. The magistrate granted the temporary
    order and the matter was scheduled for hearing on February 22, 2017.
    {¶7}   On February 21, 2017, appellant filed a voluntary dismissal of his Civ.R.
    60(B) motion. After a hearing on appellee’s motion for a restraining order, the court
    enjoined appellant from disposing of $100,000 of the proceeds from the real estate sale
    and ordered appellant to convey that amount to appellee. The court dissolved the order
    restraining appellant from obtaining the balance of the proceeds.
    {¶8}   On October 26, 2017, appellant re-filed his Civ.R. 60(B) motion, arguing
    the same points. And, on November 28, 2017, the trial court overruled the motion
    without a hearing. Appellant appeals from this judgment, assigning the following as
    error:
    {¶9}   “The trial court erred and abused its discretion when it failed to grant
    appellant a hearing on his motion for relief from judgment and summarily overruled it.”
    {¶10} In order to prevail on a motion brought pursuant to 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 proceedings was entered or taken.” Argo Plastic
    Products Co. v. Cleveland, 
    15 Ohio St.3d 389
    , 391 (1984), citing GTE Automatic
    Electric v. ARC Industries, 
    47 Ohio St.2d 146
     (1976), paragraph two of the syllabus. If
    any prong of this requirement is not satisfied, relief shall be denied. Argo, supra, at 391.
    3
    {¶11} A trial court is not required to conduct a hearing on a Civ.R. 60(B) motion
    unless the motion and accompanying materials contain operative facts to support relief.
    Kay v. Glassman, Inc., 
    76 Ohio St.3d 18
     (1996). We review a trial court’s decision
    granting or denying a party's motion for relief from judgment for an abuse of
    discretion. Strack v. Pelton, 
    70 Ohio St.3d 172
    , 174 (1994).
    {¶12} Appellant sought relief, pursuant to Civ.R. 60(B)(1), (2), (4), and (5).
    Although appellant’s first motion for relief, which he dismissed, was filed within a year of
    the final decree, his second motion was filed well beyond a year from that order.
    Accordingly, appellant was precluded from seeking relief under Civ.R. 60(B)(1) and (2).
    {¶13} Civ.R. 60(B)(4) and (5) provide that relief may be granted if the motion
    was filed in a reasonable time and:
    {¶14} “(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.”
    {¶15} In his motion and his appellate brief, appellant emphasizes that the
    judgment at issue is no longer equitable due to impossibility of compliance. Appellant
    takes specific issue with his spousal support obligation.1 Notwithstanding appellant’s
    allegations, R.C. 3105.18(E)(1) provides:
    {¶16} (E) If * * * a continuing order for periodic payments of money as
    spousal support is entered in a divorce or dissolution of marriage
    1. Appellant’s motion also purported to seek relief from the property division. He did not challenge with
    particularity which aspect of the property division he felt was inequitable. Similarly, he fails to provide any
    such detail in his appellate brief. On this basis alone, the issue lacks merit. Regardless, R.C. 3105.171(I)
    provides: “A division or disbursement of property * * * is not subject to future modification by the court
    except upon the express written consent or agreement to the modification by both spouses.” No such
    agreement to modification was entered by both spouses. Thus, appellant’s nominal request to seek relief
    from the property division would lack merit even if he made a substantive argument on the issue.
    4
    action that is determined on or after January 1, 1991, the court that
    enters the decree of divorce or dissolution of marriage does not
    have jurisdiction to modify the amount or terms of the alimony or
    spousal support unless the court determines that the circumstances
    of either party have changed and unless one of the following
    applies:
    {¶17} (1) In the case of a divorce, the decree or a separation agreement
    of the parties to the divorce that is incorporated into the decree
    contains a provision specifically authorizing the court to modify the
    amount or terms of alimony or spousal support.
    {¶18} Accordingly, a trial court does not have continuing jurisdiction to modify a
    spousal support order unless the court specifically reserves jurisdiction in the divorce
    decree. As discussed above, there was no jurisdictional reservation.
    {¶19} Furthermore, in Morris, 
    supra,
     the Ohio Supreme Court held “that a trial
    court does not have jurisdiction under Civ.R. 60(B) to vacate or modify an award of
    spousal support in a decree of divorce or dissolution when the decree does not contain
    a reservation of jurisdiction to modify the award of spousal support pursuant to R.C.
    3105.18(E).” Morris, supra, at ¶2.
    {¶20} In Morris, 
    supra,
     Mr. Morris sought relief from his spousal support
    obligation pursuant to Civ.R. 60(B)(4) and (5). The trial court concluded relief was not
    available because the decree did not afford the trial court continuing jurisdiction to
    modify the award.    The Second Appellate District affirmed the judgment, concluding
    R.C. 3105.18(E) established specific jurisdictional preconditions for modification which
    were not present in the separation agreement, which was incorporated into the decree
    of dissolution.
    {¶21} The Ohio Supreme Court accepted jurisdiction of a certified conflict on the
    following issue: “Does a trial court have jurisdiction under Civ.R. 60(B) to vacate or
    modify an award of spousal support in a decree of divorce or dissolution where the
    5
    decree does not contain a reservation of jurisdiction to modify the award of spousal
    support pursuant to R.C. 3105.18(E)?” Morris, supra, at ¶1. The Court answered the
    certified question in the negative, concluding Civ. R. 60(B) may not be used to modify
    an award of spousal support outside the parameters of R.C. 3105.18(E): The Court
    observed:
    {¶22} Our precedent * * * establishes that substantive law controls the
    issue of when a trial court has jurisdiction to modify a spousal-
    support award contained in a decree of divorce or dissolution. R.C.
    3105.18(E) is “‘that body of law which creates, defines and
    regulates the rights of the parties,’” to modify an award of spousal
    support. Havel [v. Villa St. Joseph], 
    131 Ohio St.3d 235
    , 2012-Ohio-
    552, at ¶16, quoting Krause v. State, 
    31 Ohio St.2d 132
     (1972),
    paragraph one of the syllabus, overruled on other grounds,
    Schenkolewski v. Cleveland Metroparks Sys., 
    67 Ohio St.2d 31
    (1981).
    {¶23} In R.C. 3105.18(E), the General Assembly has established the
    limits of a trial court's jurisdiction to modify an award of spousal
    support. And a party’s request for modification falls within those
    statutory limits only if the parties agree or the court orders that
    jurisdiction be reserved. In other words, the trial court must first
    determine whether the decree of divorce or dissolution contains a
    reservation of jurisdiction. If the trial court lacks jurisdiction to
    modify, then the inquiry of the court ends there. To permit a trial
    court to exercise jurisdiction on the authority of Civ.R. 60(B) in the
    absence of a reservation of jurisdiction would make the force of the
    procedural rule greater in scope than the substantive right the
    General Assembly established in R.C. 3105.18(E). Because Civ.R.
    60(B) is a procedural rule, it cannot override the substantive law
    of R.C. 3105.18(E). See Ohio Constitution, Article IV, Section 5(B).
    Morris, 
    supra,
     at ¶¶ 56–57.
    {¶24} The parties agreed, via their separation agreement, to a spousal support
    award that could not be modified by the court. And the trial court expressly stated, in
    the final divorce decree, that it did not possess continuing jurisdiction to modify that
    award. Accordingly, pursuant to Morris, the trial court lacked jurisdiction to modify the
    order via Civ.R. 60(B).
    6
    {¶25} Notwithstanding the Supreme Court’s statement of law in Morris, which we
    are bound to follow, we note its application could be problematic. For example, a party
    could engage in fraud or misrepresentation in the negotiation of a spousal support
    agreement. And if the agreement or decree did not include a jurisdictional reservation,
    the judgment still survives, and the defrauded party will remain bound by the opposing
    party’s unlawful conduct. In this respect, completely depriving a trial court of subject
    matter jurisdiction to consider a motion for relief from a spousal support obligation,
    pursuant to Civ.R. 60(B), where there is no jurisdictional reservation to modify the
    obligation, is troublesome and, under circumstances not present in this case,
    fundamentally unjust. Thus, unless a party has a substantive legal right to be free from
    fraud or other unlawful conduct, a trial court would be without power to relieve a party
    from a spousal support judgment obtained through such insidious means unless a
    jurisdictional reservation exists.
    {¶26} Notwithstanding this point, appellant could allege no operative facts to
    support relief from judgment in this matter. We therefore hold the trial court did not err
    in denying appellant relief from judgment without a hearing.
    {¶27} Appellant’s assignment of error is without merit.
    {¶28} For the reasons discussed in this opinion, the judgment of the Geauga
    County Court of Common Pleas is affirmed.
    THOMAS R. WRIGHT, P.J.,
    TIMOTHY P. CANNON, J.,
    concur.
    7
    

Document Info

Docket Number: 2017-G-0145

Citation Numbers: 2018 Ohio 3971, 120 N.E.3d 375

Judges: Rice

Filed Date: 9/28/2018

Precedential Status: Precedential

Modified Date: 1/12/2023