Kisielius v. Kisielius , 2009 Ohio 4624 ( 2009 )

[Cite as Kisielius v. Kisielius, 2009-Ohio-4624.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
JANINA SVIOKLINE KISIELIUS,
PLAINTIFF-APPELLEE,
v. CASE NO. 17-09-05
VYTAS KISIELIUS, EXECUTOR, ET AL.,
DEFENDANTS/THIRD PARTY
PLAINTIFFS-APPELLANTS,
v. OPINION
EDWARD D. JONES & COMPANY,
THIRD PARTY DEFENDANT-APPELLEE.
JANINA SVIOKLINE KISIELIUS,
PLAINTIFF-APPELLEE,
v. CASE NO. 17-09-11
VYTAS KISIELIUS, EXECUTOR, ET AL.,
DEFENDANTS/THIRD PARTY
PLAINTIFFS-APPELLANTS,
v. OPINION
EDWARD D. JONES & COMPANY,
THIRD PARTY DEFENDANT-APPELLEE.
Case No. 17-09-05, 17-09-11
Appeal from Shelby County Common Pleas Court
Trial Court Nos. 07CV352 and 07CV000352
Judgments Affirmed
Date of Decision: September 8, 2009
APPEARANCES:
Keith M. Schnelle for Appellants
James L. Thieman for Appellee
SHAW, J.
{¶1} Appellant Vytas Kisielius (“Vytas”), acting as the executor of the
estate of Alfonsas Kisielius (“Alfonsas”) and as the successor trustee of the
Alfonsas Kisielius Revocable Trust (“the trust”) appeals from the August 21, 2008
Decision of the Court of Common Pleas of Shelby County, Ohio granting
summary judgment in favor of Appellee Janina Sviokline Kisielius (“Janina”) and
the April 3, 2009 Decision of the Court of Common Pleas of Shelby County, Ohio
denying Vytas’ Civil Rule 60(B) motion for relief from judgment.
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{¶2} Alfonsas and Janina were married on July 23, 1999. Prior to
marrying, Janina and Alfonsas entered into an Antenuptial Agreement dated July
16, 1999. The antenuptial agreement provided, in pertinent part, as follows:
Upon the death of Alfonsas, if he shall die before Janina, she
shall be paid the sum of ONE HUNDRED THOUSAND
DOLLARS ($100,000) from probate or non-probate assets.
Janina shall have the right to use and occupy any primary and
secondary residences of Alfonsas for ten (10) years from his date
of death. Janina shall not be obligated to pay rent but shall pay
the taxes, insurance, maintenance, utilities and up-keep of such
residence.
***
Janina will make no additional claims on the probate or non-
probate assets of Alfonsas including but not limited to assets in
his revocable living trust dated November 30, 1998, individual
IRA accounts, individual brokerage accounts and individual
annuities.
***
The Parties may from time to time during the marriage
establish common incidents of ownership of property, real,
personal and mixed, and make gifts to each other and acquire
property together, in joint names, with right of survivorship or
as tenants in common, none of which shall be considered a
waiver or amendment of the terms of this Agreement, except to
the extent that either Party should modify his or her Last Will
and Testament. However, to the extent that either party should
modify his or her Last Will and Testament, if it varies from the
terms of this Agreement so as to give more to the surviving
spouse than the first-dying spouse is obligated to make by this
Antenuptial Agreement, such modification shall constitute a
partial waiver, limited to the specific assets mentioned in a Last
Will and Testament hereafter executed by Alfonsas or Janina.
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{¶3} It appears, although not expressly clear from the record, that during
the course of the marriage Alfonsas and Janina resided predominately in a Florida
condominium. It also appears that although Alfonsas owned the condominium in
Sydney, Ohio, the couple did not spend much time at the Sydney condominium.
{¶4} During the course of the marriage, several financial transactions
occurred that are pertinent to the case at hand. Alfonsas took a $100,000 loan
from the trust. It appears from the record that this loan could have been taken to
make improvements on the Florida property. However, no writing was ever
created expressing the purpose of the loan and no loan documents were ever
signed delineating terms of repayment. Additionally, it appears that the loan was
taken from the trust solely by Alfonsas, as Janina had no control over the trust.
Moreover, Janina did not sign any papers evidencing a loan.
{¶5} Also during the course of the marriage, on January 17, 2001,
Alfonsas and Janina opened a joint Money Market Savings Account at the Bank of
America.
{¶6} Janina and Alfonsas remained married until Alfonsas’ death on
January 31, 2007. Alfonsas died testate. Alfonsas had executed a Last Will and
Testament (“the will”), dated November 30, 1998 with several subsequent
codicils. Alfonsas had also created The Alfonsas Kisielius Revocable Trust (“the
trust”) on November 30, 1998 which had several subsequent amendments.
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{¶7} The first codicil to Alfonsas’ will was executed on September 6,
2000. The first codicil recognized Alfonsas’ marriage to Janina and recognized
the $100,000 payment in the antenuptial agreement, which was to be paid by the
estate or the trust. The first amendment to the trust also recognized the marriage
and the $100,000 payment which was specified to come from either the probate
estate or the trust.
{¶8} On June 8, 2001 Alfonsas executed a second amendment to the trust,
which directed the Florida condominium, along with all furnishings and
housegoods, be transferred to Janina upon his death.
{¶9} Alfonsas made a second codicil to his will on September 28, 2004.
The second codicil recognized the transfer of the Florida condominium to Janina,
and named Janina as the alternate executor of the will, should Vytas be unable or
unwilling to act as executor.
{¶10} After Alfonsas’ death, Vytas, his son, opened Alfonsas’ estate in the
Probate Court of Shelby County, Ohio on March 8, 2007. Vytas was appointed as
the executor of the estate on March 9, 2007.
{¶11} It appears from the record before this court that in July of 2007
Janina filed a claim against the estate for $100,000, which was rejected in August
of 2007.
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{¶12} On October 11, 2007 Janina filed a complaint for declaratory
judgment and money damages claiming that she was entitled to receive $100,000
pursuant to the terms of the antenuptial agreement and claiming that she was
entitled to the Bank of American Money Market Savings Account, which vested in
her name on Alfonsas’ death, and according to Janina, should not be considered an
asset of Alfonsas’ estate.
{¶13} On November 20, 2007 Vytas filed an answer and counterclaim in
his capacity as executor of Alfonsas’ estate and a third-party complaint for
declaratory judgment in his capacity as executor and also in his capacity as trustee.
In his counterclaim, Vytas claimed that Janina committed improper endorsement
and conversion and therefore was liable to the estate for $80,000. In the third-
party complaint Vytas requested that Janina be required to return the $80,000 she
deposited into the joint account, that the court enter declaratory judgment stating
that Janina had no interest in the Sydney condominium and that the Florida
condominium would be transferred to her subject to the balance due on the home
loan, that the court order that the IRA not be disbursed until the trial court ruled on
the merits of the third-party claim, that the court enter declaratory judgment that
Janina was not entitled to any of the estate of Alfonsas or Alfonsas’ IRA, and that
the court enter declaratory judgment stating that Janina was only entitled to
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$100,000 pursuant to the terms of the antenuptial agreement. Janina filed an
answer and reply on December 18, 2007.
{¶14} On April 23, 2008 Janina filed a motion for summary judgment.
Vytas filed a memorandum in opposition on May 13, 2008 and Janina filed a reply
memorandum on May 20, 2008. An oral argument was held on the motion for
summary judgment on July 22, 2008. Both Vytas and Janina filed briefs after the
hearing.
{¶15} On August 21, 2008 the trial court granted summary judgment in
favor of Janina. On August 27, 2008 Janina filed a motion for prejudgment
interest. Vytas filed a motion in opposition on September 10, 2008.
{¶16} On February 13, 2009 Vytas filed a motion for relief from judgment
pursuant to Civ. R. 60(B). Janina filed her motion in opposition on February 26,
2009. On April 3, 2009 the trial court entered a ruling denying Vytas’ Civ. R.
60(B) motion.
{¶17} Vytas now appeals, asserting six assignments of error.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT REQUESTED,
ALLOWED AND CONSIDERED ADDITIONAL EVIDENCE
AFTER THE FILING OF THE MOTION FOR SUMMARY
JUDGMENT AND THEN OVERRULED VYTAS’S MOTION
TO DISREGARD ADDITIONAL EVIDENCE.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED WHEN IT DETERMINED
THERE WAS NO GENUINE ISSUE OF MATERIAL FACT
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ABOUT WHO OWNED THE PROCEEDS OF THE SAVINGS
ACCOUNT IN FLORIDA AND THAT IT WAS A JOINT
ACCOUNT WITH RIGHTS OF SURVIVORSHIP.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED WHEN IT DETERMINED VIA
A MOTION FOR SUMMARY JUDGMENT THAT DESPITE
THE THE [SIC] IMPROPER ENDORSEMENT AND
CONVERSION BY JANINA OF THE IRA CHECK, IT WAS
PROPERLY PAYABLE TO HER AND WAS NOT AN
OFFSET AGAINST THE ANTENUPTIAL AGREEMENT.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED AS A MATTER OF LAW
WHEN IT DETERMINED THAT THE $80,000 IRA CHECK
SHOULD NOT BE AN OFFSET FROM THE $100,000 GIFT
TO JANINA DESCRIBED IN THE ANTENUPTIAL
AGREEMENT.
ASSIGNMENT OF ERROR V
THE TRIAL COURT ERRED WHEN IT DETERMINED THE
FLORIDA CONDOMINIUM SHOULD NOT BE
TRANSFERRED TO JANINA SUBJECT TO THE HOME
IMPROVEMENT LOAN WHEN GENUINE ISSUES OF
FACT STILL EXISTED.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED WHEN IT OVERRULED THE
CIV. R. 60(B) MOTION OF APPELLANT.
{¶18} For ease of discussion, we elect to address Vytas’ assignments of
error out of order.
First Assignment of Error
{¶19} In his first assignment of error, Vytas argues that the trial court erred
when it considered additional evidence in ruling on Janina’s motion for summary
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judgment. Specifically, Vytas argues that the trial court erred in overruling his
motion to disregard additional evidence, filed on July 15, 2008. In his motion and
on appeal, Vytas specifically argues that the trial court erred by allowing Janina to
file a copy of the signature card of the Bank of America joint account and copies
of the warranty deeds to the Florida and Sydney condominiums.
{¶20} As an initial matter, we note that Civil R. 56 provides for
supplementation of the record, as follows:
(E) Form of affidavits; further testimony; defense required
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated in the affidavit. Sworn
or certified copies of all papers or parts of papers referred to in
an affidavit shall be attached to or served with the affidavit. The
court may permit affidavits to be supplemented or opposed by
depositions or by further affidavits. When a motion for summary
judgment is made and supported as provided in this rule, an
adverse party may not rest upon the mere allegations or denials
of the party's pleadings, but the party's response, by affidavit or
as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial. If the party does
not so respond, summary judgment, if appropriate, shall be
entered against the party.
(emphasis added).
{¶21} As this Court has previously recognized, supplemental evidence is a
permissible tool to support a motion for summary judgment. See, Feichtner v.
Kalmbach Feeds, Inc., 3rd Dist. No. 16-04-09, 2004-Ohio-6048 at ¶11. Moreover,
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this Court notes that the Bank of America Signature Card had already been
submitted to the trial court as part of Janina’s original complaint. The additional
submission was only to put on record a copy that was more legible.
{¶22} Additionally, with regard to the condominiums, ownership of the
condominiums was never at issue and in fact, in his third-party complaint, Vytas
asserted that ownership of the condominiums was held by the trust, which was
evidenced by the deeds. Accordingly, we cannot find that the trial court acted in
any manner contrary to law in allowing the filing of supplementary evidence that
was in accordance with Civ. R. 56 and already in the record. Vytas’ first
assignment of error is overruled.
Sixth Assignment of Error
{¶23} In his sixth assignment of error, Vytas argues that the trial court
erred in overruling his Civ. R. 60(B) motion for relief from judgment. The
Supreme Court of Ohio has determined that “[a] motion for relief from judgment
under Civ.R. 60(B) is addressed to the sound discretion of the trial court, and that
court's ruling will not be disturbed on appeal absent a showing of abuse of
discretion.” Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122. An
abuse of discretion constitutes more than an error of law or judgment and implies
that the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. When
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applying the abuse-of-discretion standard, a reviewing court may not simply
substitute its judgment for that of the trial court. Id.{¶24} Civ. R. 60(B) specifically sets forth the grounds for relief from
judgment and provides as follows:
On motion and upon such terms as are just, the court may
relieve a party or his legal representative from a final judgment,
order or proceeding for the following reasons: (1) mistake,
inadvertence, surprise or excusable neglect; (2) 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. The motion shall be made
within a reasonable time, and for reasons (1), (2) and (3) not
more than one year after the judgment, order or proceeding was
entered or taken. A motion under this subdivision (B) does not
affect the finality of a judgment or suspend its operation.
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 proceeding was entered or taken.” GTE
Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351
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N.E.2d 113 at paragraph two of the syllabus. All three elements must be
established, and the test is not fulfilled if any one of these requirements is not met.
ABN AMRO Mtge. Group, Inc. v. Jackson, 159 Ohio App.3d 551, 556, 824 N.E.2d
600, 2005-Ohio-297.
{¶25} In the present case, Vytas essentially argues that his motion for relief
from judgment should have been granted because he was dissatisfied with the trial
court’s grant of summary judgment in favor of Janina. In support of his motion,
Vytas does not cite any of the first four grounds for granting relief from judgment,
as articulated in Civ. R. 60(B). Instead, Vytas argues that he is entitled to relief
under the “catch all provision,” which allows for relief for any other reason that
justifies relief. However, as will be discussed more fully in this court’s disposition
of Vytas’ second, third, fourth, and fifth assignments of error, this Court cannot
find any error in the trial court’s grant of summary judgment. Therefore, we
cannot find an abuse of discretion in the judgment of the trial court denying Vytas’
Civ. R. 60(b) motion. Accordingly, Vytas sixth assignment of error is overruled.
Second, Third, Fourth, and Fifth Assignments of Error
{¶26} Our review of the record reveals that the trial court has thoroughly
addressed all of the relevant factual and legal issues pertaining to Vytas’ second,
third, fourth, and fifth assignments of error in its judgment entry in which it
granted Janina’s motion for summary judgment. Accordingly, for the purposes of
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ruling on Vytas’ assignments of error herein, we hereby adopt the well-reasoned
Decision/Order of the trial court on Janina’s motion for summary judgment dated
August 21, 2008, incorporated and attached hereto as Exhibit A, as our opinion in
this case.
{¶27} For the reasons stated in the final judgment entry of the trial court,
attached and incorporated herein as Exhibit A, Vytas’ second, third, fourth, and
fifth assignments of error are overruled.
{¶28} Based on the foregoing, the August 21, 2008 and April 3, 2009
Decisions of the Court of Common Pleas of Shelby County, Ohio are affirmed.
Judgments Affirmed
PRESTON, P.J., concur.
/jlr
ROGERS, J., Concurring in Part and Dissenting in Part.
{¶29} I concur with the majority on the first, third, and fifth assignments of
error. I also concur with the result reached by the majority on the sixth assignment
of error. However, I respectfully dissent with the reasoning and result on the
second and fourth assignments of error.
{¶30} In the sixth assignment of error, Appellant argues that the trial court
erred in denying the motion for relief from judgment. While I concur that the
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motion was properly denied, I would find that the motion was simply an attempt to
use Civ.R. 60(B) in lieu of an appeal. The issues raised by Appellant in the
motion were all issues that could have been raised in a timely appeal. State ex rel.
McKinney v. Defiance Cty. Court of Common Pleas, 120 Ohio St.3d 277, 2008-
Ohio-6107 (‘“A Civ.R. 60(B) motion for relief from judgment cannot be used as a
substitute for a timely appeal’”), quoting Key v. Mitchell, 81 Ohio St.3d 89, 90-91,
1998-Ohio-643 (“A Civ.R. 60(B) motion for relief from judgment cannot be used
as a substitute for a timely appeal or as a means to extend the time for perfecting
an appeal from the original judgment”). This motion should have been denied on
that basis.
{¶31} Furthermore, I would consider the second and fourth assignments of
error together and sustain these two assignments. The antenuptial agreement
provides that Janina “shall” receive the sum of $100,000 from probate or non-
probate assets. It further provides that Janina “will make no additional claims on
the probate or non-probate assets of Alfonsas including but not limited to assets in
his revocable living trust * * *.” Contrary to the conclusion of the trial court and
the majority, it appears clear to me that this language places a maximum amount
that Janina may claim from the estate and/or trust.
{¶32} Section II, paragraph F, of the antenuptial agreement provides:
The Parties may from time to time during the marriage establish
common incidents of ownership of property, real, personal, and
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mixed, and make gifts to each other and acquire property
together, in joint names, with right of survivorship or as tenants
in common, none of which shall be considered a waiver or
amendment of the terms of this Agreement, except to the extent
that either Party should modify his or her Last Will and
Testament. However, to the extent that either party should
modify his or her Last Will and Testament, if it varies from the
terms of this Agreement so as to give more to the surviving
spouse than [sic] the first-dying spouse is obligated to make by
this Antenuptial Agreement, such modification shall constitute a
partial waiver, limited to the specific assets mentioned in a Last
Will and Testament hereafter executed * **.
{¶33} Neither the trial court nor the majority have discussed this language,
but apparently concluded that Alfonsas had intended a gift of additional monies to
Janina by creating a joint savings account. I disagree.
{¶34} Alfonsas clearly intended for the Florida condominium to be in
addition to the $100,000 because he amended his will and the trust to specify the
gift of that property as required by the antenuptial agreement. However, there was
no such amendment to the will which would allow the joint savings account in
Florida to be excluded from the calculation of her entitlement to $100,000. I
would, therefore, find that regardless of the characterization of the ownership of
the joint savings account, by the terms of the antenuptial agreement, it counts
towards Janina’s entitlement to $100,000.
{¶35} Accordingly, I dissent from the majority opinion on the second and
fourth assignments of error.
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