Opinion
No. 09AP-146.
Rendered on March 30, 2010. REGULAR CALENDAR
Appeal from the Franklin County Court of Common Pleas, C.P.C. No. 05DR-04-1615, Division of Domestic Relations.
Christopher M. Cooper, and Paul E. Morrison, for appellant.
Ted Scott, for appellee.
DECISION
{¶ 1} Plaintiff-appellant, Earl T. Brewer ("appellant"), appeals from a judgment entry and decree of divorce entered by the Franklin County Court of Common Pleas, Division of Domestic Relations, in accordance with an agreed entry signed by the parties and approved by the trial court. For the following reasons, we affirm the judgment of the trial court.
{¶ 2} On April 26, 2005, appellant instituted this divorce action against defendant-appellee, Karen J. Brewer ("appellee"). The parties participated in settlement negotiations regarding the distribution of marital assets, which is evidenced by the divorce settlement memorandum filed on October 16, 2007 ("settlement memorandum"). This settlement memorandum indicated that appellee would be entitled to one-half of appellant's pension, but the amount received would be offset by one-half of appellee's social security account. Thereafter, on December 13, 2007, the parties approached the court to request that the matter be scheduled for a contested trial. As a result, the trial court included a note in the record providing: "Case settled 10/16/07, but settlement fell apart." The trial court therefore set the matter for a contested trial on February 14, 2008.
{¶ 3} In the time leading up to the trial date, the parties continued to negotiate a settlement. Then, on February 14, 2008, the parties appeared before the trial court and signed an agreed entry stating the terms of the divorce and property distribution. The trial court approved the entry and reduced it to judgment.
{¶ 4} Despite the fact that appellant was represented by counsel, appellant was apparently unaware that the agreed judgment entry lacked any reference to an offset of appellant's pension with appellee's social security account. As a result, on June 23, 2008, appellant filed a Civ. R. 60(A) motion to vacate the judgment. On June 26, 2008, appellee filed a memorandum contra appellant's Civ. R. 60(A) motion.
{¶ 5} On July 25, 2008, the trial court issued a decision setting the matter for a Civ. R. 60(B) hearing. In this decision, the court outlined the requirements associated with Civ. R. 60(B).
{¶ 6} The trial court presided over the hearing on October 7, 2008. On January 12, 2009, the court issued its decision denying appellant Civ. R. 60(B) relief. Appellant timely appealed and raises the following assignments of error:
[I.] THE TRIAL COURT ERRED IN DEEMING APPELLANT'S CIV.R. 60(A) MOTION [AS] A CIV.R. 60(B) MOTION. THE [CIV.R.] 60(B) MOTION WAS NOT PROPERLY BEFORE THE TRIAL COURT.
[II.] ALTHOUGH APPELLANT'S [CIV.R.] 60(B) MOTION WAS NOT PROPERLY BEFORE THE TRIAL COURT, THE TRIAL COURT ERRED IN ITS DECISION AND ENTRY ON PLAINTIFF'S [CIV.R] 60(B) MOTION IN NOT APPLYING R.C. 3105.171 AS REQUIRED IN THE DIVISION OF MARITAL ASSETS.
[III.] THE TRIAL COURT ERRED IN NOT APPLYING A SOCIAL SECURITY OFFSET IN ITS DECISION AND ENTRY ON PLAINTIFF'S [CIV.R] 60(B) MOTION AS ALLOWED FOR AN EQUITABLE DIVISION OF MARITAL ASSETS IN THE NEVILLE CASE.
[IV.] THE TRIAL COURT ERRED IN ITS DECISION AND ENTRY ON PLAINTIFF'S [CIV.R] 60(B) MOTION IN NOT SETTING ASIDE THE AGREED ENTRY AS A CONTRACT THAT IS UNENFORCEABLE FOR EQUITABLE AND PUBLIC POLICY REASONS.
{¶ 7} Before analyzing the substantive assignments of error, we must first address appellee's motion to strike evidence not in the record, which was filed with this court on June 16, 2009. Appellant filed an untimely "contramotion" on July 13, 2009. Despite being untimely filed, we will consider the arguments presented in appellant's filing in the interest of justice.
Under Loc. R. 6(A), appellant's responsive brief was due ten days after service of appellee's motion.
{¶ 8} In appellee's motion, she argues that all exhibits and testimony not previously offered to the trial court should be stricken from the record on appeal. She specifically references exhibit Nos. 3, 4, 15, and 16 to appellant's brief. According to appellant, exhibit Nos. 3 and 4 were already a part of the appellate record because appellant had attached these as exhibits to his Civ. R. 60(A) motion before the trial court. Further, appellant argues that exhibit Nos. 15 and 16 should not be stricken because they are tax forms that would have been discoverable and admissible in the contested trial.
{¶ 9} Under Ohio App. R. 9(A), the record on appeal consists of:
The original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases.
However, this rule "cannot be used to add collateral, albeit possibly important and illuminating, documents to a record." In re Conservatorship of Ahmed, 7th Dist. No. 01 BA 13, 2003-Ohio-3272, ¶ 53.
{¶ 10} Given that appellant's Civ. R. 60(A) motion included exhibit Nos. 3 and 4 as attachments and appellee failed to object to these attachments before the trial court, these exhibits are already a part of the appellate record. Indeed, the trial court decision even makes a general reference to the previous versions of the proposed settlement. (Trial court's decision on appellant's Civ. R. 60(B), at 2.) Accordingly, we overrule in part appellee's motion to strike appellant's exhibits as it regards exhibit Nos. 3 and 4. However, with regard to exhibit Nos. 15 and 16, merely because an exhibit would have been admissible at trial does not permit a party to introduce new evidence into the appellate record. See In re Conservatorship of Ahmed. Accordingly, we sustain in part appellee's motion to strike appellant's exhibits as it regards exhibit Nos. 15 and 16.
{¶ 11} In his first assignment of error, appellant argues that the trial court erred by converting his Civ. R. 60(A) motion into a Civ. R. 60(B) motion. He argues that he was not prepared to argue the elements of a Civ. R. 60(B) motion, which are different than a Civ. R. 60(A) motion. We find these arguments to be unpersuasive.
{¶ 12} First, the trial court issued its decision on July 25, 2008 setting appellant's Civ. R. 60(B) motion for hearing. It further outlined the requirements under Civ. R. 60(B). Accordingly, we find that appellant had notice of the trial court's intention to treat his Civ. R. 60(A) motion as a Civ. R. 60(B) motion.
{¶ 13} Next, we consider the substance of appellant's argument. The differences between the functions of Civ. R. 60(A) and Civ. R. 60(B) are well-established:
Civ. R. 60(A) permits a trial court, in its discretion, to correct clerical mistakes that are apparent on the record, but does not authorize a trial court to make substantive changes in judgments. The term "clerical mistake" refers to a mistake or omission, mechanical in nature and apparent on the record that does not involve a legal decision or judgment.
(Internal citations omitted.) Atwater v. Delaine, 155 Ohio App.3d 93, 2003-Ohio-5501, ¶ 11. In Atwater, the Eighth Appellate District held that a change in the classification of an award of attorney fees and other equitable property to "spousal support" amounted to a substantive change, which is governed by Civ. R. 60(B). Id. at ¶ 12. Additionally, this court has previously held:
[T]he basic distinction between clerical mistakes that can be corrected under Civ. R. 60(A) and substantive mistakes that cannot be corrected is that the former consists of "blunders in execution" whereas the latter consists of instances where the court changes its mind, either because it made a legal or factual mistake in making its original determination, or because, on second thought, it has decided to exercise its discretion in a different manner.
Wardeh v. Altabchi, 158 Ohio App.3d 325, 2004-Ohio-4423, ¶ 10, quoting Kuehn v. Kuehn (1988), 55 Ohio App.3d 245, 247. In Wardeh, the Civ. R. 60 movant conceded that by deleting a paragraph from a civil protection order, the order was substantively changed. Id.
{¶ 14} In the instant matter, we have no such concession. Rather, appellant notes that the agreed judgment entry failed to include a provision offsetting appellant's pension with appellee's social security account. By filing a Civ. R. 60(A) motion, appellant argues that the addition of a provision to the judgment that offsets portions of the parties' pensions constitutes a clerical, rather than substantive, change. We disagree.
{¶ 15} Appellant cites the settlement memorandum, in which the parties apparently agreed to offset. Again, however, subsequent to this settlement memorandum, the parties approached the court to schedule a contested trial because the settlement had failed. As a result, we see no mechanical mistake apparent in the record. See Atwater.
{¶ 16} Further, in the agreed judgment entry, the parties agreed to the terms of the property distribution. Notably absent from that agreement was any specific mention of an offset of appellant's pension with appellee's social security account. Therefore, based upon the substance of the agreed judgment entry, the parties did not agree to such an offset. As a result, the addition of a provision regarding offset would undeniably amount to a substantive change. As a result, the trial court could have simply overruled appellant's Civ. R. 60(A) motion because it lacked merit. Instead, however, the trial court graciously converted appellant's Civ. R. 60(A) motion to accomplish that which appellant intended for it to do, that is, to make a substantive change to the agreed judgment entry.
{¶ 17} For these reasons, Civ. R. 60(B) governs the issues presented herein. The trial court did not err in converting appellant's Civ. R. 60(A) motion to a Civ. R. 60(B) motion. We therefore overrule appellant's first assignment of error.
{¶ 18} In appellant's second and third assignments of error, he argues that the trial court erred by overruling his Civ. R. 60(B) motion because it failed to distribute the property equitably, and it failed to offset the parties' pensions in accordance with case law. Again, we disagree.
{¶ 19} In accordance with well-settled case law:
To prevail on a motion brought under 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, paragraph two of the syllabus. A trial court's decision on a Civ. R. 60(B) motion is subject to an abuse of discretion standard of review on appeal. GTE Automatic Elec., at 148. An abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 20} Because the instant matter was resolved by an agreed judgment entry, we also note:
It is a common and favored practice in Ohio for parties in domestic relations actions to resolve the issues between them through negotiated settlement. Sundstrom v. Sundstrom, 11th Dist. No. 2005-A-0013, 2006 Ohio 486, at P22; Booth v. Booth, 11th Dist. No. 2002-P-0099, 2004 Ohio 524, at P6. "Where the parties reach such an agreement in the presence of the court, the agreement constitutes a binding contract and the trial court may properly sign a judgment entry reflecting the settlement agreement." Booth, 2004 Ohio 524, at P6, citing Spercel v. Sterling Industries, Inc. (1972), 31 Ohio St.2d 36, 285 N.E.2d 324, paragraph two of the syllabus.
Dvorak v. Petronzio, 11th Dist. No. 2007-G-2752, 2007-Ohio-4957, ¶ 17.
{¶ 21} In appellant's second and third assignments of error, he argues that the trial court failed to equitably distribute the parties' marital property. However, appellant undisputedly signed the agreed entry and therefore agreed to the terms of the property distribution. If appellant felt as if the property distribution was inequitable, he should have refrained from signing the agreed judgment entry. In the trial court's decision, it emphasized this idea by holding that it could not alter the terms of the agreement without prejudicing appellee's rights. We agree and find that the issues presented herein are governed by principles of contract law. Accordingly, we find no abuse of discretion in the trial court's decision to deny appellant's Civ. R. 60(B) motion on the basis that the property distribution was not equitable and in accordance with domestic relations case law. As a result, we overrule appellant's second and third assignments of error.
{¶ 22} In appellant's fourth assignment of error, he challenges the agreed judgment entry on contract principles. Specifically, he argues that the agreed entry is ambiguous, its creation was defective, and it is unenforceable for public policy reasons. As a result, appellant argues that the trial court abused its discretion in denying his Civ. R. 60(B) motion.
{¶ 23} It is well-settled that an appellant cannot present new arguments for the first time on appeal. Havely v. Franklin Cty. Ohio, 10th Dist. No. 07AP-1077, 2008-Ohio-4889, fn 3, quoting State ex rel. Gutierrez v. Trumbull Cty. Bd. of Elections (1992), 65 Ohio St.3d 175, 177; see also Republic Steel Corp. v. Bd. of Revision of Cuyahoga Cty. (1963), 175 Ohio St. 179, syllabus; Miller v. Wikel Mfg. Co., Inc. (1989), 46 Ohio St.3d 76, 78. Indeed, appellate courts typically will not consider arguments that were never presented to the trial court whose judgment is sought to be reversed. See State ex rel. Quarto Mining Co. v. Foreman (1997), 79 Ohio St.3d 78, 81, quoting Goldberg v. Indus. Comm. (1936), 131 Ohio St. 399, 404. Finally, with specific regard to Civ. R. 60(B), "a movant may not use the arguments lost in the underlying judgment to justify relief from that judgment." City of Streetsboro v. Encore Homes, 11th Dist. No. 2002-P-0018, 2003-Ohio-2109, ¶ 10, citing Elyria Twp. Bd. of Trustees v. Kerstetter (1993), 91 Ohio App.3d 599, 603; see also State ex rel. Elyria v. Trubey (1983), 24 Ohio App.3d 44.
{¶ 24} When relating these rules of appellate law to the arguments presented herein, it becomes clear that we need not consider many of the arguments presented in appellant's fourth assignment of error. Indeed, appellant presents many new arguments not previously raised before the trial court. Specifically, in the trial court proceedings, appellant never argued that the agreed judgment entry was ambiguous. He never raised any issue with the consideration underlying the contract. He failed to present any public policy arguments. Additionally, appellant failed to raise any equitable defenses, such as: illegality, fraud, and unilateral mistake. Because appellant failed to raise these arguments before the trial court, we find that he has waived these arguments on appeal. Indeed, we cannot find that the trial court abused its discretion in denying Civ. R. 60(B) relief based upon arguments that were never presented to it.
{¶ 25} However, in his Civ. R. 60(B) motion, appellant did argue that he never agreed to waive an offset. On appeal, he similarly argues that the formation of the contract was defective because there was no meeting of the minds regarding a waiver of an offset.
{¶ 26} The Fourth Appellate District considered similar issues in Wine v. Wine, 4th Dist. No. 06CA6, 2006-Ohio-6995. In Wine, a husband and wife filed a pro se petition for dissolution and entered into a settlement agreement that was adopted by the trial court and reduced to judgment. Id. at ¶ 4. Two months later, the wife filed a Civ. R. 60(B) motion seeking relief on the grounds of mistake, excusable neglect, fraud, and duress. Id. at ¶ 11-12. The trial court denied wife's request for relief. Id. at ¶ 7. On appeal, the wife argued that there was an unequal property division and there was no meeting of the minds with respect to the separation agreement. Id. at ¶ 19. In response, the Fourth Appellate District rejected these arguments and found that the wife could not object to a property distribution that she expressly agreed to. Id. at ¶ 20. Further, with regard to the meeting of the minds argument, the Fourth Appellate District held:
We also reject appellant's contention that no "meeting of the minds" occurred in their separation agreement. * * * [A]ppellant's signature appears on the dissolution petition and settlement agreement. This indicates her agreement to the terms.
Id. at ¶ 23. As a result, the Fourth Appellate District affirmed the trial court's decision to deny Civ. R. 60(B) relief. Id. at ¶ 27.
{¶ 27} We find the analysis in Wine to be directive. Indeed, a fundamental principle of contract law is that a signatory to a contract is presumed to have read and understood the terms of the contract and assented to be bound thereby. Preferred Capital, Inc. v. Power Eng. Group, Inc., 112 Ohio St. 3d 429, 2007-Ohio-257, ¶ 10, citing Haller v. Borror Corp. (1990), 50 Ohio St.3d 10, 14; DeCamp v. Hamma (1876), 29 Ohio St. 467, 471-72. It is undisputed that appellant did, in fact, sign the agreed judgment entry. Furthermore, at the time he signed, appellant was represented by counsel. In spite of all of this, appellant now argues there was no meeting of the minds, such that the contract is defective and the judgment should be vacated.
{¶ 28} In its decision, the trial court rejected appellant's position and refused to modify the terms of the agreement. It held that such a modification would prejudice appellee merely because the terms of the contract were clearer to her than they were to appellant. The trial court further held that appellant had failed to provide sufficient evidence supporting his motion. We agree with this well-reasoned analysis. As a result, we cannot find an abuse of discretion in denying the Civ. R. 60(B) motion on the basis that there was no meeting of the minds.
{¶ 29} Because the agreed judgment entry lacked an agreement to offset, appellant should have been aware of this based upon the terms of the agreement, or lack thereof. If there was no meeting of the minds as appellant suggests, it was attributable to appellant's counsel's failure to recognize the omission and/or explain as much to his client. For purposes of Civ. R. 60(B) motions, "any `mistake, inadvertence, surprise or excusable neglect,' as set forth in Civ. R. 60(B)(1), by counsel for a party does not entitle that party to relief from judgment under the rule." Argo Plastic Prods. Co. v. City of Cleveland (1984), 15 Ohio St.3d 389, 393. If we vacated or modified the judgment as appellant suggests, this would amount to "visiting the sins" of appellant's counsel on appellee. See GTE Automatic Elec, at 152, citing Link v. Wabash R.R. Co. (1962), 370 U.S. 626, 634, 82 S.Ct. 1386, fn. 10. We refuse to hold appellee accountable for potential errors made by appellant's counsel.
{¶ 30} As a result, we find that the trial court did not err in rejecting appellant's meeting of the minds argument. Accordingly, we find that the trial court did not abuse its discretion in denying Civ. R. 60(B) relief on the basis of contract principles. We therefore overrule appellant's fourth assignment of error.
{¶ 31} Based upon the foregoing, appellee's motion to strike evidence is sustained in part as it regards exhibit Nos. 15 and 16 of appellant's brief, while it is also overruled in part as it regards exhibit Nos. 3 and 4 of appellant's brief. Further, after having overruled each of appellant's four assignments of error, we affirm the decision of the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations.
Judgment affirmed.
Tyack, P.J. and McGrath, J., concur.