In re Whitman

[This opinion has been published in Ohio Official Reports at 

81 Ohio St.3d 239

.]




                                    IN RE WHITMAN.
                      [Cite as In re Whitman, 

1998-Ohio-466

.]
Domestic relations—Dissolutions—Civil procedure—Trial court may grant relief
        from judgment under Civ.R. 60(B)(1), (2), or (3) as to property division in
        the separation agreement without vacating the decree of dissolution,
        when—Remarriage of opposing party is not a complete bar to relief, but
        may be considered by trial court in determining whether such relief is
        equitable.
1.      Where the parties to a dissolution of marriage have expressly agreed in a
        separation agreement that the agreement may be modified by court order,
        and the agreement has been incorporated into the decree, a trial court may,
        pursuant to its continuing jurisdiction to enforce the decree, grant relief
        from judgment under Civ.R. 60(B)(1), (2), or (3) as to the property division
        in the separation agreement without vacating the decree of dissolution.
2.      When a party has petitioned pursuant to Civ.R. 60(B)(1), (2), or (3) for relief
        from a decree of dissolution, remarriage of the opposing party is not a
        complete bar to relief, but may be considered by the trial court in
        determining whether such relief is equitable.
     (No. 96-1487—Submitted September 24, 1997—Decided March 11, 1998.)
       APPEAL from the Court of Appeals for Hancock County, No. 5-95-47.
                                  __________________
        {¶ 1} On December 9, 1993, appellant, Jacquelyn S. Whitman, and
appellee, Jeffrey J. Whitman, signed a separation agreement that was filed with the
court with a petition for dissolution of marriage. This separation agreement
included an article regarding modification. Article 17 states as follows: “This
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Agreement shall not be altered, modified, or amended unless it is done so in writing,
signed by both parties, or by Court Order.”
       {¶ 2} On March 9, 1994, the parties signed an addendum to the separation
agreement on the same day as the final dissolution hearing before a court-appointed
referee. The addendum did not alter Article 17. On March 16, 1994, the court
issued the final decree of dissolution approving and incorporating the separation
agreement and the addendum.
       {¶ 3} On August 15, 1994, Mrs. Whitman filed a motion for relief from
judgment under Civ.R. 60(B)(1), (3), and (5), asking the court to partially set aside
the judgment entry and separation agreement because several issues were not
properly and fairly addressed in the final order. Shortly thereafter, Mrs. Whitman
amended her motion for relief, claiming that there were substantial omissions,
mistakes, and misstatements in the separation agreement and requesting that the
entire dissolution be vacated.
       {¶ 4} During the pendency of the Civ.R. 60(B) motion, Mr. Whitman
remarried. The court conducted a series of evidentiary hearings and, on July 25,
1995, granted Mrs. Whitman’s motion for relief and vacated the decree of
dissolution. The court concluded that the separation agreement failed to address
ownership of substantial material assets and that Mrs. Whitman had entered into
the agreement based upon a material mistake of fact. Furthermore, Mr. Whitman’s
remarriage was not a defense because he had remarried with knowledge of the
proceedings and the potential implications for his remarriage.
       {¶ 5} The appellate court reversed and held that Civ. R. 60(B) was not
available for relief from a decree of dissolution when the party against whom the
motion was made has legally remarried. In such a case, the aggrieved party was
limited to a common-law cause of action for damages.
       {¶ 6} The cause is now before this court upon the allowance of a
discretionary appeal.




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                              __________________
       Malone & Ault and Richard R. Malone, for appellant.
       Whitman & Hawkins Co., L.P.A., and Jeffrey V. Hawkins, for appellee.
                              __________________
       LUNDBERG STRATTON, J.
       {¶ 7} We are asked to decide whether a party to a dissolution of marriage is
entitled to relief from judgment under Civ.R. 60(B) when at the time he or she
consented to a separation agreement, he or she was unaware that it contained
material omissions, mistakes, and misstatements with regard to property belonging
to the couple. We must also decide the effect, if any, of the opposing party’s
remarriage upon the court’s Civ.R. 60(B) analysis.
       {¶ 8} For the reasons that follow, we hold that where the parties to a
dissolution have expressly agreed in a separation agreement that the agreement may
be modified by court order, and the agreement has been incorporated into the
decree, a trial court may, pursuant to its continuing jurisdiction to enforce the
decree, grant relief from judgment under Civ.R. 60(B)(1), (2), or (3) as to the
property division in the separation agreement, without vacating the decree of
dissolution. We also hold that when a party has petitioned pursuant to Civ.R.
60(B)(1), (2), or (3) for relief from a decree of dissolution, remarriage of the
opposing party is not a complete bar to relief, but may be considered by the trial
court in determining whether such relief is equitable.
           DISSOLUTION AND THE SEPARATION AGREEMENT
       {¶ 9} In Ohio, dissolution is a creature of statute that is based upon the
parties’ consent. It is this mutuality component of a dissolution that distinguishes
it from termination of a marriage by divorce. Indeed, “mutual consent is the
cornerstone of our dissolution law.” Knapp v. Knapp (1986), 

24 Ohio St.3d 141, 144

, 24 OBR 362, 364, 

493 N.E.2d 1353, 1356

. An integral part of the dissolution
proceeding is the separation agreement agreed to by both spouses.              R.C.




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3105.63(A)(1). The separation agreement must provide for a division of all
property. 

Id.

 The separation agreement is a binding contract between the parties.
In re Adams (1989), 

45 Ohio St.3d 219, 220

, 

543 N.E.2d 797, 798

.
         {¶ 10} If the court is satisfied that both parties agree to the dissolution and
to the terms of the separation agreement, then a judgment or decree of dissolution
is granted whereby the marriage is legally terminated. R.C. 3105.65(B). The
statute provides for relief from the final judgment in strictly limited circumstances
because both parties agreed and consented to the terms of the separation agreement
and dissolution of the marriage.
         {¶ 11} Courts retain only limited jurisdiction in dissolution proceedings. A
court retains continuing jurisdiction to enforce the decree and to modify issues
“pertaining to the allocation of parental rights and responsibilities for the care of
the children, to the designation of a residential parent and legal custodian of the
children, to child support, and to visitation.”1 R.C. 3105.65(B).
         {¶ 12} But if consent or mutuality did not exist when the parties entered into
the separation agreement because of fraud or material mistake or misrepresentation,
then there was no agreement upon which the dissolution decree could have been
based.     This lack of mutuality undermines the integrity of the dissolution
proceeding and may constitute sufficient grounds to set aside the decree under
Civ.R. 60(B). In re Murphy (1983), 

10 Ohio App.3d 134

, 10 OBR 184, 

461 N.E.2d 910

. See, also, In re Hobbs (June 11, 1992), Franklin App. No. 91AP-1478,
unreported, 

1992 WL 132460

; Kelly v. Nelson (Dec. 29, 1992), Franklin App. No.
92AP-1014, unreported, 

1992 WL 394859

.




1. An earlier version of the statute also authorized courts to modify matters involving periodic
alimony payments. However, in 1975, the General Assembly amended the law and deleted the
court’s power to retain jurisdiction over alimony matters, again emphasizing the need for finality of
the termination of the marriage. (136 Ohio Laws, Part II, 2452.)




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                                  January Term, 1998




                                     CIV.R. 60(B)
        {¶ 13} Civ.R. 60(B) is a mechanism whereby a party or parties may obtain
relief by motion from a judgment or order. The moving party must demonstrate
that he or she (1) has a meritorious defense or claim to present if the relief is granted,
(2) is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through
(5), and (3) has made the motion within a reasonable time unless the motion is based
upon Civ.R. 60(B)(1), (2), or (3), in which case it must be made not more than one
year after the judgment. GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976),

47 Ohio St.2d 146

, 

1 O.O.3d 86

, 

351 N.E.2d 113

, paragraph two of the syllabus.
The determination of whether relief should be granted is addressed to the sound
discretion of the trial court. Griffey v. Rajan (1987), 

33 Ohio St.3d 75, 77

, 

514 N.E.2d 1122, 1123

.
        {¶ 14} Nothing within Civ.R. 60(B) precludes its application to dissolution
decrees. In fact, courts have relied upon Civ.R. 60(B) to set aside the entire decree
in dissolution cases where the separation agreement was based on incomplete
financial disclosure. In re Hobbs, supra; Kelly v. Nelson, supra; In re 

Murphy, supra;

 Ashley v. Ashley (1981), 

1 Ohio App.3d 80

, 1 OBR 359, 

439 N.E.2d 911

.
        {¶ 15} When relying on Civ.R. 60(B), courts generally vacate the entire
dissolution decree, including the separation agreement that was incorporated into
the decree. 

Id.

 Courts have reasoned that because the separation agreement has
been incorporated into the final decree itself, to vacate the separation agreement is
also to vacate the final decree. Ashley v. Ashley, 

1 Ohio App.3d at 83

, 1 OBR at
363, 

439 N.E.2d at 915

. Courts have concluded that this result maintains the
integrity of the legislative scheme that emphasizes the mutuality of the parties’
consent to a dissolution.
        {¶ 16} While we recognize the importance of finality of judgments,
particularly in this context, we believe that Civ.R. 60(B) seeks a balance between
the need for finality and the need for fair and equitable decisions based upon full




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and accurate information. Civ.R. 60(B) attempts to “ ‘strike a proper balance
between the conflicting principles that litigation must be brought to an end and
justice should be done.’ ” Colley v. Bazell (1980), 

64 Ohio St.2d 243, 248

, 

18 O.O.3d 442, 445

, 

416 N.E.2d 605, 609

 (quoting 11 Wright & Miller, Federal
Practice and Procedure [1973] 140, Section 2851).
                          PUBLIC POLICY CONCERNS
       {¶ 17} There is a need for finality to the dissolution proceeding. Parties to
a dissolution expect their marriage to be terminated for all time. The General
Assembly intended some degree of finality when it restricted the continuing
jurisdiction of courts in dissolution proceedings. We have previously upheld the
finality of a dissolution with respect to the alimony or spousal support set forth in
the separation agreement. Knapp v. Knapp (1986), 

24 Ohio St.3d 141

, 24 OBR
362, 

493 N.E.2d 1353

; In re Adams, 

45 Ohio St.3d 219

, 

543 N.E.2d 797

.
       {¶ 18} A heightened need for finality exists in these cases because legal
relationships change as the result of a dissolution when former spouses enter into
new marriages. If the dissolution of a marriage is later vacated, then the validity of
any subsequent marriage is thrown into doubt. The situation is further complicated
if children are involved in the subsequent relationships.
       {¶ 19} The court of appeals also expressed a concern about the potential for
vindictively filed motions. However, a trial court is not required to grant Civ.R.
60(B) relief. While remarriage of one of the parties is clearly a factor to be
considered by the trial court in determining whether Civ.R. 60(B) relief would be
appropriate, the motivations of the movant may also be considered. Thus, while
the remarriage of a party is a factor which may weigh against the granting of a
Civ.R. 60(B) motion, it does not automatically prevent the court from finding that
such relief is appropriate under all of the circumstances.
       {¶ 20} The court of appeals’ opinion that remarriage is a complete bar to
awarding any relief is not based upon sound policy and may cause inequitable




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results for the party seeking relief from an unfair property division. Such a rule
may encourage a party to remarry merely to thwart a former spouse’s ability to
challenge an unfair property division after discovering fraud or misrepresentation.
We believe that permitting Civ.R. 60(B) relief in cases of mutual mistake, fraud, or
misrepresentation will serve as a deterrent to such practices.
            MODIFICATION OF THE DECREE OF DISSOLUTION
       {¶ 21} The trial court concluded that the omission of a substantial amount
of assets from the Whitman separation agreement constituted a material mistake of
fact and a fatal flaw in the decree.      Therefore, the court vacated the entire
dissolution decree. The court of appeals, however, focused on Mr. Whitman’s
remarriage and the problems that the trial court’s vacation created with respect to
the remarriage.    Both courts refused to modify only part of the separation
agreement. Both the court of appeals and the trial court were acting under a belief
that the property division in this case could not be amended without vacating the
entire decree of dissolution. It is, therefore, necessary to address the issue of
modification.
       {¶ 22} We have never held that Civ.R. 60(B) relief must take the form of a
full vacation of the judgment or order. In fact, partial vacation or modification of
an order has been implicitly accepted as an acceptable form of relief under this rule.
See, generally, e.g., System Fedn. No. 91, Ry. Employees’ Dept. AFL-CIO v. Wright
(1961), 

364 U.S. 642

, 

81 S.Ct. 368

, 

5 L.Ed.2d 349

 (finding an abuse of discretion
when trial court refused to modify a consent decree pursuant to a Fed.R.Civ.P. 60[b]
request).
       {¶ 23} While the General Assembly has given courts continuing
jurisdiction to modify those sections of a separation agreement that pertain to
parental rights and responsibilities, R.C. 3105.63 and 3105.65 do not create
continuing jurisdiction for a trial court to modify property divisions in separation
agreements. However, nothing in the statutes suggests that parties are precluded




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from voluntarily including a provision for continuing jurisdiction in their separation
agreement. This general principle has previously been recognized in the context of
spousal support modifications. In In re Adams, 

45 Ohio St.3d 219

, 

543 N.E.2d 797

,
we held that although the court does not have statutory authority to modify the
alimony payments established by the parties in the separation agreement, the parties
themselves could agree to give the trial court this authority. See, also, Colley v.
Colley (1989), 

43 Ohio St.3d 87

, 

538 N.E.2d 410

, syllabus.
       {¶ 24} Therefore, in a dissolution proceeding, if the parties have
incorporated into the separation agreement a clause that allows the court to modify
the agreement by court order, and the court has approved this agreement and
incorporated it into the decree of dissolution, the court has continuing jurisdiction
to enforce this clause. If the parties both consent to a modification of the agreement
or actually incorporate a means for modification into their settlement agreement,
the element of mutual consent has not been lost, and there is no reason to require
vacation of the entire decree in order to grant relief under a Civ.R. 60(B) motion.
Consequently, a trial court may grant relief from judgment under Civ.R. 60(B)(1),
(2), or (3) as to the property division in the separation agreement without vacating
the decree of dissolution where the parties to a dissolution have expressly agreed in
a separation agreement that the agreement may be modified by court order and the
agreement has been incorporated into the decree.
       {¶ 25} The settlement agreement that was incorporated into the Whitmans’
dissolution decree included an article that provided for modification of the
agreement. Article 17 of the separation agreement states as follows: “This
Agreement shall not be altered, modified, or amended unless it is done so in writing,
signed by both parties, or by Court Order.” This language would have no meaning
if modification by court order were limited to those instances in which the
dissolution statutes already provide for modification. Therefore, in order to give
this clause any meaning, it must be read to refer to modifications not otherwise




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authorized under the dissolution statutes. This reservation of power to the court is
clearly broad enough to encompass modifications to any provision of the settlement
agreement.
       {¶ 26} Thus, as Civ.R. 60(B) is an appropriate procedural vehicle for
requesting relief from a judgment, be it vacation or modification, and as the parties
in this case have specifically reserved to the court the power to modify the
separation agreement, the trial court may, in its discretion, elect to modify the
property division rather than vacate the entire decree.
       {¶ 27} In order to further promote finality in dissolution proceedings,
today’s holding is limited to motions brought under Civ.R. 60(B)(1), (2), and (3).
This limitation, in effect, provides permanency to any dissolution that has remained
unchallenged for one year. Civ.R. 60(B). Further, it preserves the rights of the
moving party to Civ.R. 60(B) relief without sacrificing the general finality of a
dissolution decree and without creating any undue hardship for the opposing party.
By limiting our holding in this way, we also remain consistent with our holding in
Knapp v. Knapp, 

24 Ohio St.3d 141

, 24 OBR 362, 

493 N.E.2d 1353

, which
precluded a party from using the “it is no longer equitable” clause of Civ.R.
60(B)(4) to modify a decree of dissolution that was entered into voluntarily.
       {¶ 28} Consequently, we reverse the judgment of the court of appeals and
remand this cause to the trial court for reconsideration consistent with this opinion.
                                                                  Judgment reversed
                                                               and cause remanded.
       MOYER, C.J., RESNICK and PFEIFER, JJ., concur.
       COOK, J., concurs in part and dissents in part.
       DOUGLAS, J., dissents.
       F.E. SWEENEY, J., dissents and would affirm the judgment of the court of
appeals.
                                __________________




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       COOK, J., concurring in part and dissenting in part.
       {¶ 29} I concur with the view expressed in the majority opinion that Civ.R.
60(B) relief is available despite the remarriage of one of the parties to a dissolution.
       {¶ 30} I cannot agree, however, that Civ.R. 60(B) permits a separation
agreement incorporated into a dissolution decree to be amended by court order in
any way other than in accordance with R.C. 3105.65(B). To hold otherwise and
sanction the use of Civ.R. 60(B) to impose a property division different than the
parties originally agreed to is to obviate an element necessary to dissolutions—
assent. When granting Civ.R. 60(B) relief, a court must vacate the dissolution, not
amend the separation agreement.
       {¶ 31} The majority acknowledges the necessity of assent by the parties to
the terms of a separation agreement incorporated into a dissolution decree, but then
reaches out to find assent to court-ordered modification in the clause of the
separation agreement dedicated to non-modification.            Relief from judgment
pursuant to Civ.R. 60(B) is, of course, available to afford recourse to parties
otherwise foreclosed by the finality-of-judgment doctrine and does not hinge on a
party’s giving consent to such court action. Thus, the import ascribed by the
majority to the phrase “or by Court Order” in this separation agreement appears
strained. A more reasonable reading would be that the phrase in the agreement
acknowledges the potential for court-ordered modification pursuant to R.C.
3105.65(B).
       {¶ 32} For the foregoing reasons, I would reverse the judgment of the court
of appeals and reinstate the judgment of the trial court.
                               __________________




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