[Cite as DeJoseph v. DeJoseph, 2011-Ohio-3173.]


                           STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


ANTHONY DeJOSEPH,                                 )
                                                  )      CASE NO.     10 MA 156
        PLAINTIFF-APPELLANT,                      )
                                                  )
        - VS -                                    )      OPINION
                                                  )
ANASTASIA DeJOSEPH,                               )
                                                  )
        DEFENDANT-APPELLEE.                       )



CHARACTER OF PROCEEDINGS:                             Civil Appeal from Common Pleas Court,
                                                      Domestic Relations Division, Case No.
                                                      09DR342.


JUDGMENT:                                             Affirmed.


APPEARANCES:
For Plaintiff-Appellant:                              Attorney Robert Rohrbaugh
                                                      4800 Market Street, Suite A
                                                      Boardman, Ohio 44512


For Defendant-Appellee:                               Attorney Matthew Giannini
                                                      1040 South Commons Place, Suite 200
                                                      Youngstown, Ohio 44514


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                      Dated: June 21, 2011
VUKOVICH, J.


        ¶{1}     Plaintiff-appellant Anthony DeJoseph (Husband) appeals the decision of
the Mahoning County Domestic Relations Court that granted defendant-appellee
Anastasia DeJoseph’s, n.k.a. Anastasia Roussos (Wife), Civ.R. 60(B) motion to vacate
the separation agreement solely as it related to the division of the Exxon Mobil pension
and awarded Wife 50% interest in Husband’s pension with Exxon Mobil from the date
of the marriage on June 28, 1969 though the date of the divorce on December 21,
2009.
        ¶{2}     Husband argues that the trial court abused its discretion in vacating the
separation agreement as it pertained to the Exxon Mobil account, which he asserts is
not a pension.        He contends that the Wife’s arguments to the trial court were
conclusory allegations without any evidentiary support and there must be finality to the
decision.      Lastly, and alternatively, he contends that the trial court lost its way in
awarding Wife 50% of the Exxon Mobil account because it considered stipulations that
were altered by the separation agreement and the transcript did not fully support the
trial court’s position.
        ¶{3}     Wife counters the above by asserting that a separation agreement must
divide all property and, as such, the trial court did not abuse its discretion in granting
the motion to vacate.       She then contends that the trial court properly found from
reviewing the entire file, which included the stipulations and transcript.
        ¶{4}     For the following reasons, the judgment of the trial court is affirmed. The
record indicates that the Exxon Mobil pension was considered by the parties to be a
pension.    Furthermore, the trial court did not abuse its discretion in vacating the
divorce decree as it pertained to the Exxon Mobil pension because all three elements
of the GTE test were met. The trial court did not commit any error in awarding Wife
50% of the Exxon Mobil pension.
                                STATEMENT OF THE CASE
        ¶{5}     Husband and Wife were married on June 28, 1969. Husband filed a
complaint for divorce on June 26, 2009. Wife answered and filed a counterclaim
seeking a divorce. Children born of the marriage were emancipated.
       ¶{6}   Approximately 20 days prior to trial at a telephone status conference, the
parties stipulated to certain facts. In those stipulations it states:
       ¶{7}   “Husband has a vested pension with Exxon Mobile and an IRA with
Fidelity. A QDRO shall be issued relevant to the two (2) utilizing the dates of coverture
as June 28, 1969, through December 21, 2009. Wife to be awarded 50% of coverture
portion.”
       ¶{8}   The magistrate adopted and approved the written stipulations. Neither
party filed objections to that decision.
       ¶{9}   The case then proceeded to trial before the court. In the middle of trial
the parties reached a settlement. (12/28/09 Tr. 2). The trial court granted Husband
the divorce and incorporated the parties’ separation agreement into its final judgment
of divorce. 12/28/09 J.E.
       ¶{10} The separation agreement indicates that the parties agreed Wife would
receive no spousal support and the court would not retain jurisdiction over the spousal
support order. As to the division of the pension, the separation agreement provided:
       ¶{11} “ARTICLE NINE. PENSIONS:
       ¶{12} “The Plaintiff/Husband has an Investment Account and an IRA with
Fidelity in the amount of $3,104,068.38 and $1,581,705.03 Pension, which accrued
during coverture.     The aforementioned sum of $3,104,068.38 includes all of the
proceeds from the recently exercised stock options with Exxon Mobil. All of the stock
options with Exxon Mobil have now been exercised. Verification of the exercising of
the stock options shall be provided to the Defendant no later than January 30, 2010. A
Qualified Domestic Relations Order shall be issued against said Pension and a copy
shall be forwarded to the Plan Administrator.” 12/28/09 J.E.
       ¶{13} On July 2, 2010, Wife filed a “Motion to Clarify Divorce Entry;
Alternatively, Motion to Vacate Judgment Entry of Divorce.” Wife alleged that in Article
Nine of the separation agreement it was the parties’ intent to equally divide the
investment account, the IRA, and the Husband’s Exxon Oil Pension. Wife admitted
that Article Nine is grammatically incorrect because of the absence of proper
punctuation. She contended that if the trial court finds that the separation agreement
excludes the Exxon Mobil account, then the separation agreement must be vacated on
the basis of Civ.R. 60(B)(1), excusable neglect.
        ¶{14} Husband responded to the motion arguing that Wife failed to
demonstrate a meritorious defense or that excusable neglect is present. 08/06/10
Motion. Further, he stated that had the separation agreement included the Exxon
Mobil account, he would not have signed the agreement because it was his belief that
this property was to remain his exclusively.              Thus, he contended that the motion
should be denied.
        ¶{15} A hearing was held on the matter and on September 8, 2010, the trial
court determined the action. It denied Wife’s motion to clarify the judgment entry,
however, it granted her Civ.R. 60(B) motion. It found that a separation agreement,
while referencing the Exxon Mobil account, did not award that property to either party.
It concluded that a separation agreement must divide all property and that when it fails
to divide all property, the decree is voidable and can be vacated under Civ.R. 60(B).
Thus, since the motion to vacate was made approximately six months after the divorce
decree, the trial court granted the Wife’s request for vacation. However, the vacation
only extended to the Exxon Mobil pension. The trial court then discussed the parties’
intent in the separation agreement, noting that neither party chose to testify at the
hearing.1 Thus, after reviewing the entire record, it found that it was the parties’ intent
for the separation agreement to divide the Exxon Mobil account equally between the
parties.
                                   ASSIGNMENT OF ERROR
        ¶{16} “THE       TRIAL      COURT       COMMITTED           REVERSIBLE          ERROR        IN
SUBSTITUTING           ITS     JUDGMENT           FOR      THE      PARTIES        CONTRACTUAL
AGREEMENT.”
        ¶{17} The standard of review used to evaluate the trial court's decision to deny
or grant a Civ.R. 60(B) motion is abuse of discretion. Preferred Capital, Inc. v. Rock N
Horse, Inc., 9th Dist. No. 21703, 2004-Ohio-2122, at ¶9.                     “Abuse of discretion”
connotes more than an error in judgment; it implies that the trial court's judgment is
arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio
St.3d 217, 219.




        1
          The transcript of the hearing on the motion to vacate was not made a part of the record before
this court.
       ¶{18} The Ohio Supreme Court set out the controlling test for Civ.R. 60(B)
motions in GTE Automatic Elec., Inc. v. Arc Industries, Inc. (1976), 47 Ohio St.2d 146.
The court stated:
       ¶{19} “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.” Id. at paragraph two of the
syllabus.
       ¶{20} The grounds for relief under the second GTE element are:
       ¶{21} “(1) [M]istake, 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.” Civ.R. 60(B).
       ¶{22} The trial court referenced Civ.R. 60(B)(5) when it granted the motion to
vacate. It provided the following reasoning to support its decision:
       ¶{23} “The Court finds that R.C. 3105.171(B) is specific that in a divorce
proceeding, the Court shall determine what constitutes marital property and upon
making such a determination, shall divide the marital property equitably between the
spouses. Likewise, R.C. 3105.63 proves that separation agreements shall provide a
division of all property. These statutes are mandatory.” 09/08/10 J.E.
       ¶{24} The court then stated the division of the pension is material to the
parties’ ultimate agreement, in which the Wife agreed to no spousal support and
agreed that the trial court would not retain jurisdiction over that issue. Thus, it found a
meritorious claim.
       ¶{25} We do not find that the trial court abused its discretion in reaching the
determination Civ.R. 60(B)(5) was met. R.C. 3105.171(B) states:
      ¶{26} “In divorce proceedings, the court shall, and in legal separation
proceedings upon the request of either spouse, the court may, determine what
constitutes marital property and what constitutes separate property. In either case,
upon making such a determination, the court shall divide the marital and separate
property equitably between the spouses, in accordance with this section.”
      ¶{27} Neither the separation agreement nor the divorce decree indicates
whether this account is separate or marital property. Admittedly, Husband’s name is
the only name on the account.       However, that does not mean it is his separate
property. R.C. 3105.171(A)(3)(a) defines “Marital property” as:
      ¶{28} “(i) All real and personal property that currently is owned by either or both
of the spouses, including, but not limited to, the retirement benefits of the spouses,
and that was acquired by either or both of the spouses during the marriage;
      ¶{29} “(ii) All interest that either or both of the spouses currently has in any real
or personal property, including, but not limited to, the retirement benefits of the
spouses, and that was acquired by either or both of the spouses during the marriage;
      ¶{30} “(iii) Except as otherwise provided in this section, all income and
appreciation on separate property, due to the labor, monetary, or in-kind contribution
of either or both of the spouses that occurred during the marriage.”
      ¶{31} Thus, the Exxon Mobil account could still constitute marital property
under these definitions.
      ¶{32} Furthermore, as the trial court correctly noted, the separation agreement
does not state that either the Wife or Husband is awarded any portion of the Exxon
Mobil account. That account is worth over three million dollars and consequently, is
material to the parties’ separation agreement.        Thus, the requirements in R.C.
3105.171(B) were not met. The trial court’s decision to vacate the divorce decree as it
pertains to the Exxon Mobil account is warranted.
      ¶{33} Likewise, its decision that there is a meritorious defense is also sound.
Husband argues that although the parties agreed to split his pension, that agreement
did not include the Exxon Mobil account because it is not a pension. Instead, it is a
supplemental annuity funded by his employer at the time he retired. We find no merit
with that position. The account is listed under the pension section of the separation
agreement.    Furthermore, the parties’ stipulations clearly label the Exxon Mobil
account as a pension.
       ¶{34} Husband did not file objections to the magistrate’s adoption of those
stipulations.   Consequently, pursuant to Civ.R. 53, if the stipulations were not
withdrawn, he waives all but plain error. “In appeals of civil cases, the plain error
doctrine is not favored and may be applied only in the extremely rare case involving
exceptional circumstances where error, to which no objection was made at the trial
court, seriously affects the basic fairness, integrity, or public reputation of the judicial
process, thereby challenging the legitimacy of the underlying judicial process itself.”
Goldfuss v. Davidson, 79 Ohio St.3d 116, 1997–Ohio–401, syllabus.
       ¶{35} A stipulation is a voluntary agreement between opposing counsel
concerning the disposition of some relevant point to avoid the necessity for proof of an
issue. Julian v. Creekside Health Center, 7th Dist. No. 03MA21, 2004-Ohio-3197, ¶54.
Once entered into by the parties, filed with and accepted by the court, a stipulation is
binding upon the parties and is a fact deemed adjudicated for purposes of determining
the remaining issues in the case. Id. A party who has agreed to a stipulation cannot
unilaterally retract or withdraw from it. Id. A party can only withdraw from a stipulation
with the consent of the other party or by leave of court upon good cause. Id.
       ¶{36} In this case, neither party filed a motion to set aside the stipulations.
There is no court order indicating that the stipulations were withdrawn. Admittedly the
language of the separation agreement does not track the language in the stipulations.
However, the two documents are very similar. As such, we cannot find, based on the
record before us, that the separation agreement was a mutual withdrawal of the
stipulations. Therefore, Husband has waived all but plain error. Under that standard
we will not reverse the trial court’s determination that the Exxon Mobil account is a
pension.
       ¶{37} Moreover, that stipulation and the failure to object to it or withdraw it,
taken in conjunction with the fact that Wife agreed to no spousal support and for the
trial court to not retain jurisdiction over spousal support, provides a meritorious
defense. The stipulation and agreement as to no spousal support indicate that it was
the parties’ intention for Wife to be awarded 50% of the coverture portion of the
pension.
       ¶{38} As to the third GTE element, we also do not find the trial court’s position
to be unreasonable. Here, the motion to vacate was filed a little over six months after
the divorce decree was issued.        The motion was filed shortly after the Qualified
Domestic Relations Order was issued that did not divide the Exxon Mobil pension.
This is not a situation where it was filed years later. Thus, the motion was filed within
a reasonable time and within one year. Consequently, we find no abuse of discretion
in the trial court’s decision to vacate the divorce decree as it pertains to the Exxon
Mobil pension.
       ¶{39} Having concluded that the order was properly vacated, we now turn our
attention to whether the trial court was incorrect in its determination that it was the
parties’ intent to have the separation agreement award Wife 50% of the Exxon Mobil
pension. The trial court reached this conclusion based on three sources in the record.
       ¶{40} The first is the December 2, 2009 stipulations. As aforementioned in
those stipulations, the parties agreed that the Exxon Mobil account was a pension and
that 50% of the coverture portion would be awarded to Wife.
       ¶{41} The trial court’s reliance on the stipulation was not incorrect. As we have
previously indicated given the record before us, we do not find that the stipulation was
withdrawn or that the separation agreement was a mutual withdrawal of the stipulation.
       ¶{42} The stipulation provides some of the strongest evidence that it was the
parties’ intent for Wife to be awarded half of the pension.         As indicated earlier,
Husband did not object to the stipulation. Thus, he cannot now successfully argue that
it was not his intent for Wife to have 50% of the pension.
       ¶{43} The second portion of the record the trial court relied on was the
transcript from the divorce hearing. The trial court found that at that hearing Wife
indicated that she was not seeking spousal support or for the court to retain jurisdiction
over that issue because she was going to receive one half of Husband’s pension.
Despite Husband’s contention that this transcript is not clear on that issue, we
disagree. The transcript does show that Wife agreed to receive no spousal support
and for the court to not retain continuing jurisdiction because she would receive half of
Husband’s pension. 12/28/09 Tr. 4-7. As explained above, although Husband claims
the Exxon Mobil account is not pension, it was included in the pension portion of the
separation agreement and labeled as a pension in the stipulations. Thus, it is logical
to conclude that when Wife is discussing the pension, she is discussing the Exxon
Mobil account.
       ¶{44} The third and final support the trial court used for its conclusion that the
Exxon Mobil account was intended to be divided equally is the judgment entry of
divorce in the separation agreement that included the court’s standard language for
dividing pensions and IRA’s. It explained the IRA with Fideltiy would be governed by
the IRA language in the judgment entry, while the Exxon Mobil pension would be
governed by the pension language in the judgment entry. It then noted that if the
parties did not intend to divide the pension then there would be no reason for that
language to be in the agreement. 09/08/10 J.E. The trial court’s reasoning here is
also logical.
        ¶{45} Considering all the above reasoning, we cannot find that the trial court
erred in reaching its determination that it was the parties’ intent to divide the Exxon
Mobil pension equally.
        ¶{46} In conclusion, the sole assignment of error is meritless. The trial court
did not abuse its discretion in vacating the divorce decree as it pertained to the Exxon
Mobil pension. Furthermore, the court did not err in awarding half of the pension to the
Wife.
        ¶{47} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Waite, P.J., concurs.
DeGenaro, J., concurs.
