Wiseman v. Wiseman , 2022 Ohio 3689 ( 2022 )

[Cite as Wiseman v. Wiseman, 2022-Ohio-3689.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
JAMES THOMAS WISEMAN, :
Appellant, : CASE NO. CA2022-03-004
: OPINION
- vs - 10/17/2022
:
DONNA LYNNE WISEMAN, :
Appellee. :
APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DRD20180237
J. Michael Murray, for appellant.
Grossman Law Offices, and John H. Cousins IV, for appellee.
PIPER, J.
{¶1} James Wiseman appeals from the trial court's judgment overruling his
objections to a magistrate's decision and overruling his Civ.R. 60(B) motion to vacate a
dissolution decree containing the separation agreement that he entered with appellee,
Donna Wiseman. James contends that the trial court abused its discretion by denying relief
based on Donna's alleged failure to disclose the existence of her retirement pension while
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negotiating the separation agreement.1 Finding no error, we affirm the decision of the trial
court.
I. Facts and Procedural History
{¶2} James and Donna were married in 1983. In December 2018, after 36 years
of marriage, they filed a petition for dissolution. Included in their petition for dissolution was
a separation agreement, dated November 19, 2018, dividing all their property. The
preamble to the agreement pertinently states that "[e]ach pa[r]ty attests":
1. That prior to the execution of this Agreement, he or she has
fully disclosed and revealed to the other the identification, fair
market value (or information from which fair market value can
be calculated or determined), and location of all separate and
marital assets and liabilities;
2. That this full disclosure is a material consideration of this
Agreement;
3. That in reliance upon this full disclosure, each of the parties
knowingly and voluntarily waives his or her right to discovery
available in a divorce action* * *.
In essence, James and Donna affirmed that they had fully disclosed to each other all their
property. With respect to their financial assets, they generally agreed that joint accounts
would be divided evenly and that each would keep his or her separate accounts (bank
accounts, IRA accounts, securities and brokerage accounts). Each also kept his or her
employment benefits. For Donna's benefits, they agreed:
Except as otherwise provided herein, [Donna] shall be entitled
to her pension, profit sharing 401K plans, any other type of
deferred compensation plans, stock purchase plans, and any
other type of employment benefit that she may have by reason
of her present or past employment, free and clear of any claim
of [James].
Another paragraph uses the same substantive language for James's employment benefits
1. For clarity, we will refer to the parties by their first names.
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with some appropriate differences. Also included in the petition for dissolution was an
Affidavit of Property filed by Donna. Listed under the section for pensions and retirement
plans is "401k and UPS Savings Plan." Attached to the affidavit was a property list that
Donna had prepared, "James and Donna Wiseman's Property Listing," dated April 13, 2018,
which also lists, among other items, a "401K and Savings Plan." James did not file a
property affidavit of his own.
{¶3} On January 24, 2019, the trial court entered a decree of dissolution. The court
approved the separation agreement and specifically incorporated it into the decree: "The
parties have represented to the Court and the Court so finds that the property settlement
herein constitutes a division of all marital property and debt that is fair and equitable, and
the parties waive specific findings of fact in connection therewith, and waive any listing of
assets and values * * *."
{¶4} Soon after the divorce, Donna retired from UPS, where she had worked for
three decades—most of the marriage—and she began drawing a pension from the
company. In January 2020, James filed a motion for relief from judgment under Civ.R.
60(B)(3) claiming that Donna had engaged in fraud or misrepresentation by failing to
disclose the pension. A magistrate held a hearing on the motion at which James and Donna
testified. James testified that he did not know she had the pension. He conceded that he
had read the separation agreement, including the provision that Donna would retain her
pension, but thought they were just trying to "cover her bases." James contended that
Donna had failed to disclose the pension three different times: in her property affidavit; in
the property list attached to the affidavit, and in an earlier property list, dated April 2, 2018.
The earlier property list had been prepared by Donna and does not list any financial assets.
{¶5} For her part, Donna maintained that James knew about the UPS pension.
She testified that on one occasion he had asked her the value of her pension. Also, Donna
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said that when they first discussed dissolution and how they would divide their property,
she told him that she wanted her "UPS investments" and he had agreed. Finally, Donna
said that James had sometimes joked with her sister about keeping her (Donna) around
only for her pension. Donna testified that she did not intend any deceit by not including the
pension in her affidavit or on the property lists nor was she trying to misrepresent anything.
She simply did not know how to value the pension or whether it should be included.
{¶6} On September 28, 2021, the magistrate entered a decision overruling
James's motion for relief from the dissolution decree. The magistrate found that Donna's
pension was plainly a subject of the separation agreement. He determined that Donna was
more credible on the matter and that James was aware of the pension during the marriage.
James filed objections to the magistrate's decision with the trial court. The trial court agreed
with the magistrate's credibility determination and overruled the objections, adopting the
magistrate's decision.
{¶7} James appealed.
II. Analysis
{¶8} James assigns two errors. The first challenges the denial of his Civ.R. 60(B)
motion, and the second challenges the trial court's review of the magistrate's decision.
A. Civ.R. 60(B) motion
{¶9} Assignment of Error No. 1:
{¶10} "The Magistrate erred as a matter of law in overruling Appellant's 60(B)
Motion."2
{¶11} James argues in the first assignment of error that he should have been
granted relief from the dissolution decree under Civ.R. 60(B)(3). He contends that Donna
2. It was the trial court that overruled James's motion. The magistrate's decision had no effect until the court
adopted it. Civ.R. 53(D)(4)(a). So we understand this assignment of error as directed at the trial court.
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failed to disclose her UPS pension such that he was fraudulently induced into signing the
separation agreement.
{¶12} To prevail on a Civ.R. 60(B) motion, a party must establish: (1) a meritorious
claim or defense to present if the court grants relief; (2) entitlement to relief under one of
the grounds stated in Civ.R. 60(B)(1) through (5); and (3) that the motion was filed within a
reasonable time and, when relying on Civ.R. 60(B)(1), (2), or (3), that it was filed not more
than one year after the judgment was entered. GTE Automatic Elec., Inc. v. ARC Industries,
Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. Whether to grant relief under
Civ.R. 60(B) is left in the trial court's sound discretion, and we will not disturb the court's
ruling absent an abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987).
{¶13} Civ.R. 60(B)(3) provides that a court may grant a party relief from a final
judgment based on "fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation or other misconduct of an adverse party." "[F]raud or material mistake
can invalidate a separation agreement and entitle a party to relief from a dissolution decree
under Civ.R. 60(B)." Quesinberry v. Quesinberry, 2d Dist. Montgomery No. 29192, 2022-
Ohio-635, ¶ 21. "A decree of dissolution is founded on an agreement of the parties."
Nardecchia v. Nardecchia, 155 Ohio App.3d 40, 2003-Ohio-5410, ¶ 13 (2d Dist.). "Where
a material mistake vitiates the existence of consent or mutuality, then no true agreement
exists on which to base a dissolution decree." Quesinberry at ¶ 23, citing id.{¶14} Here, James maintains that he did not know about Donna's UPS pension
when he entered into the separation agreement. He testified that, while he knew that she
worked for UPS, he did not know Donna had a pension with the company or had been
paying into a pension. He said that he did not remember joking about the pension with
Donna's sister. James asserted that Donna had three opportunities to disclose her pension
but failed to do so—in her property affidavit and on two property lists—and that, when
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signing the separation agreement, he relied on those documents. When asked about the
provision of the separation agreement that awarded Donna "her pension," James admitted
reading that provision but said that he "didn't know [Donna] had one." He "just thought they
were covering all her bases."
{¶15} Donna responds with incredulity, indicating that James knew about the
pension. She testified that, in late 2018, he asked her, "'How much is your pension?'" To
which she responded that she did not know. Donna further testified that when they first
discussed a dissolution, she referred to her UPS benefits, saying: "'You can have the house,
you can have the barns, you can have the properties, you can have the rentals,' and I said,
'and I'll take my UPS investments.' And he looked at me and he said, 'Oh, okay, that sounds
good.'" Donna also said that James had joked with her sister about the pension: "My sister
is self-employed and so is Jim. And my sister is married to her husband. He works at
Honda. He has a pension. * * * And they would joke with each other about we're only
keeping them around for their pension." Donna testified that she did not intend to deceive
anyone by not including the pension in her property affidavit and that she was not trying to
misrepresent anything. She explained that she was trying to avoid a misrepresentation,
because she did not know how to value the pension.
{¶16} While James testified at one point that he did not know Donna had a pension,
his testimony focused mostly on the fact that the pension was not disclosed in Donna's
property affidavit or property lists. His argument in the trial court and on appeal is that he
did not know about the UPS pension because Donna had failed to disclose it in those
particular documents. The fact that the pension is not listed in those particular documents
does not mean that Donna did not tell James about the pension during their pre-dissolution
discussions. Nor does it mean that he had never learned of it during the 30 years of their
marriage.
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{¶17} As the trial court noted, whether James is entitled to relief from judgment turns
on whether he knew about Donna's UPS pension when he entered the separation
agreement. James says that he did not know; Donna says that he did. The magistrate
determined that Donna was more credible on the issue. The trial court similarly found that
James knew about the pension. Therefore, the court held that he was not entitled to the
requested relief. This decision is eminently reasonable.
{¶18} There is no evidence that Donna engaged in fraud, wrongful
misrepresentation, or any other misconduct. The only real evidence supporting James's
claim is his bare statement at the hearing that he did not know about the pension. He did
not persuade the court of his claim. On the other hand, there is a good deal of evidence
suggesting that James knew about the pension. Donna began working at UPS in 1987,
around four years after she and James were married. It is incredulous that in 30 years of
work and marriage, James remained entirely unaware that Donna would receive a pension
when she retired. Indeed, at the hearing, Donna recalled three specific instances in which
James was aware of the pension. Moreover, the separation agreement plainly states that
Donna gets "her pension" "free and clear." This is not the case of a fraud,
misrepresentation, or misconduct that undermines the validity of the separation agreement.
{¶19} The first assignment of error is overruled.
B. Independent review of the magistrate's decision
{¶20} Assignment of Error No. 2:
{¶21} "The trial court abused its discretion by adopting the Magistrate's Decision."
{¶22} James next argues that the trial court improperly determined that the
magistrate appropriately applied the law. He contends that the court failed to independently
review the record before adopting the magistrate's decision.
{¶23} "A trial court abuses its discretion when it fails to conduct an independent
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review in accordance with Civ.R. 53." (Citation omitted.) Mattis v. Mattis, 10th Dist. Franklin
No. 15AP-446, 2016-Ohio-1084, ¶ 11. "This court presumes the trial court performed an
independent review of the magistrate's decision." (Citation omitted.) Georgin v. Georgin,
12th Dist. Warren No. CA2021-09-088, 2022-Ohio-1548, ¶ 12. The presumption endures
"unless the appellant 'affirmatively demonstrates' otherwise." Id., quoting Cottrell v. Cottrell,
12th Dist. Warren No. CA2012-10-105, 2013-Ohio-2397, ¶ 93.
{¶24} The trial court, in its written decision, referred to the correct standard of review,
stating that Civ.R. 53 required it to undertake an independent review regarding the matters
objected to in order to ascertain whether the magistrate properly determined the factual
issues and appropriately applied the law. And the court stated a couple of times that it had
independently examined the transcript of the hearing and the evidence presented. After
stating that it had independently reviewed the evidence, the trial court said that it could not
"find that the Magistrate improperly determined the factual issues or failed to appropriately
apply the law." "[T]he Magistrate," said the court, "was in the best position to judge the
credibility of the witnesses and the credibility of the witnesses as to the existence or
knowledge of the pension is critically important in determining the outcome of Mr.
Wiseman's motion for relief." The court found no evidentiary basis for concluding that the
magistrate was wrong in determining credibility.
{¶25} Although the trial court repeatedly said that it was conducting an independent
review, its language does suggest some deference to the magistrate. The court's review in
places seems to ask whether the magistrate's decision is supported by the record rather
than to be a complete de novo review of the matter. But a close reading shows that the
only deference paid was to the magistrate's credibility determination. And "[a]lthough a trial
court is required to independently review the record and make its own factual and legal
findings, the trial court may rely on the magistrate's credibility determinations." Gilleo v.
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Gilleo, 3d Dist. Mercer No. 10-10-07, 2010-Ohio-5191, ¶ 47. The trial court found no reason
in the record to dispute the magistrate's credibility determination. Considering Donna's
testimony to be more credible, the court independently found that James knew about
Donna's UPS pension and independently concluded that, therefore, he is not entitled to
relief from judgment. Looking at the trial court's decision in its entirety, we conclude that
the court conducted a proper independent review.
{¶26} The second assignment of error is overruled.
III. Conclusion
{¶27} We overrule both assignments of error and hereby affirm the trial court's
judgment.
M. POWELL, P.J., and S. POWELL, J., concur.
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