[Cite as Wank v. Wank, 2015-Ohio-3094.]




                     IN THE COURT OF APPEALS OF OHIO
                         THIRD APPELLATE DISTRICT
                             PAULDING COUNTY




RENEE L. WANK,

        PLAINTIFF-APPELLEE,                              CASE NO. 11-15-03

        v.

DAVID P. WANK,                                           OPINION

        DEFENDANT-APPELLANT.




               Appeal from Paulding County Common Pleas Court
                          Domestic Relations Division
                          Trial Court No. DIV 12-162

                                     Appeal Dismissed

                           Date of Decision:   August 3, 2015




APPEARANCES:

        Eric A. Mertz for Appellant

        Danny A. Hill for Appellee
Case No. 11-15-03


SHAW, J.

          {¶1} Defendant-appellant David Wank (“David”) appeals the March 6,

2015, judgment of the Paulding County Common Pleas Court granting the

“Motion for Reconsideration” of plaintiff-appellee Renee Wank (“Renee”) in

which Renee contended that the trial court erred in calculating the equalization of

marital property because it did not subtract David’s separate premarital

contribution from the total equity in the parties’ real property before dividing the

equity.     The trial court agreed with Renee’s argument in her “Motion for

Reconsideration” and therefore vacated its prior order related to that calculation

and reduced the sum that it had ordered Renee to pay David from $38,949.27 to

$31,224.64.

          {¶2} The facts relevant to this appeal are as follows. Renee and David

were married on April 17, 1993. (Doc. No. 1). They had four children together.

On August 7, 2012, Renee filed a complaint for divorce alleging that the parties

were incompatible. (Id.)

          {¶3} On September 13, 2012, David filed his answer, initially denying that

the parties were incompatible. (Doc. No. 12).

          {¶4} On August 28, 2013, Renee filed a motion to amend her complaint to

allege additional grounds for divorce including that David was a “habitual

drunkard,” that David was guilty of extreme cruelty, that David grossly neglected


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his duties to his family, and that the parties had lived separate and apart without

cohabitation for a year. (Doc. 28).

       {¶5} On August 28, 2013, the motion to amend the complaint was granted.

(Doc. No. 30).

       {¶6} On September 20, 2013, David filed his answer to the amended

complaint, denying the allegations that would allow for a divorce. (Doc. No. 42).

       {¶7} On November 22, 2013, a journal entry was filed referring the parties

to mediation. (Doc. No. 53). The parties did go through mediation, and as a result

of that mediation, they reached a partial agreement on the distribution of some of

their assets. (Doc. No. 57). The remaining unresolved issues were referred back

to the trial court. (Id.)

       {¶8} On October 28, 2014, the trial court had the parties reduce their partial

agreement to writing and the court filed a “Partial Final Judgment Entry,”

indicating that the parties had reached an agreement as to the grounds for divorce

(incompatibility) and the division of some of the marital property. (Doc. No. 104).

With regard to the issues relevant to this appeal, the partial final judgment entry

stated that the parties agreed that there was a total of $47,000.00 in equity in the

parties’ two residences—the marital residence in Defiance, Ohio, and the “Lake

property” in Camden, Michigan. (Id.) The partial final judgment entry indicated

that, “In order to equalize the equity in the Lake property located at 14790 East


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Merry Drive, Camden, Michigan and the marital residence located at 13621 Co.

Rd. 263, Defiance, Ohio, [Renee] shall pay [David] the sum of twenty three

thousand five hundred Dollars ($23,500.00).” (Id.)

          {¶9} The partial final judgment entry then indicated that the following

issues still needed to be determined:

          Defendant’s pre-marital interest in the property located at 13621
          CR 263 Defiance, Ohio; * * * Defendant’s contempt; spousal
          support; attorney fees; allocation as to Guardian Ad Litem fees;
          as well as the allocation of parental rights and responsibilities,
          medical insurance coverage, tax exemptions and child support;
          which shall be considered by this Court for final determination.

(Id.)1

          {¶10} According to the record, a final hearing on the remaining issues was

held on two dates, March 27, 2014, and July 29, 2014.2 (Doc. No. 105). On

October 28, 2014, a “Decision and Judgment Entry” was filed on the remaining

issues.     (Id.)    Regarding the separate property issues that remained to be

determined at the final hearing, the court held that David had proven by clear and

convincing evidence that he contributed premarital funds in the amount of

$15,449.27 to the marital residence for which he should be reimbursed. When

making this finding, the trial court did not alter its previous order that David was

entitled to one-half of the equity in the marital residence and in the Lake property


1
  There were multiple other issues that the entry indicated needed to be addressed by the trial court;
however, as they are not the subject of this appeal we will not further address them.
2
  No transcript was provided of the final hearing.

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Case No. 11-15-03


in the amount of $23,500.00. Thus, the trial court ordered David to receive his

premarital contribution of $15,449.27 and one-half of the parties’ total equity of

$47,000.00 in the amount of $23,500.00, for a total of $38,949.27 ($15,449.27 +

$23,500.00).

       {¶11} On November 10, 2014, Renee filed a “Motion for Reconsideration”

stating that under the current orders Renee was ordered to pay David $23,500.00

for his one-half equity in the marital real estate plus David’s pre-marital interest in

the parties’ real property of $15,449.27 for a total of $38,949.27. (Doc. No. 106).

Renee argued that the trial court miscalculated the amount she had to pay to

David. She contended that David’s pre-marital amount of $15,449.27 should have

been subtracted from the total equity, which was $47,000.00, to get a marital

equity of $31,550,73. (Id.) Renee contends that the $31,550.73 should then be

divided in half to $15,775.36, and then added to David separate premarital

contribution, to get a figure of $31,224.63. (Id.)

       {¶12} On December 15, 2014, David filed his own “Motion for

Reconsideration.” (Doc. No. 107). In the motion, David argued that there were

errors in the child support guideline worksheet and that the child support he was

ordered to pay should be recalculated. (Id.)




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       {¶13} On February 11, 2015, David filed a response to Renee’s “Motion for

Reconsideration.” (Doc. No. 113). In the response, he argued that the court’s

original calculation was not an error. (Id.)

       {¶14} On February 11, 2015, David also filed a “Motion for Clarification of

Companionship Time,” seeking to clarify summer companionship time with the

parties’ children, which he contended was not adequately covered in the final

judgment. (Doc. No. 114). On that same date David also filed a “Motion for

Interest” arguing that Renee should be ordered to pay him the statutory interest

rate on the $38,949.27. (Doc. No. 115). In addition, David also filed a “Motion to

Divide Capital Gains,” contending that there was a capital gain of approximately

$2,500 as a result of cashing a mutual fund, and that capital gain needed divided.

(Doc. No. 116).

       {¶15} On March 6, 2015, the trial court filed an entry granting David’s

“Motion for Reconsideration,” which had argued that the child support worksheets

were improperly calculated. (Doc. No. 117). The entry recalculated the child

support as requested. (Id.)

       {¶16} Also on March 6, 2015, the trial court filed another entry regarding

the remaining motions filed by the parties, including Renee’s “Motion for

Reconsideration.” (Doc. No. 117). The trial court found that it had erred in

calculating the amount Renee owed to David as Renee argued and it vacated the


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amount owed previously and ordered Renee instead to pay David $31,224.64.

(Doc. No. 118). As to the remaining motions that had been filed by David,

David’s motion for interest was found well-taken, as was his motion to divide

capital gains. (Id.)

       {¶17} It is from this judgment that David appeals, asserting the following

assignment of error for our review.

                    ASSIGNMENT OF ERROR
       THE TRIAL COURT ERRED BY GRANTING PLAINTIFF-
       APPELLEE’S MOTION FOR RECONSIDERATION OF THE
       TRIAL COURT’S DECISION AND JUDGMENT ENTRY
       REGARDING THE DIVISION OF THE MARITAL EQUITY
       AND SEPARATE PROPERTY AWARD, BECAUSE THE
       ADJUSTMENT SOUGHT BY PLAINTIFF-APPELLEE IN
       HER MOTION FOR RECONSIDERATION WAS NOT A
       PROPER MOTION AND RELATED TO AN ALLEGED
       ERROR WHICH WAS SUBSTANTIVE, NOT CLERICAL IN
       NATURE AND NO APPEAL OF THE COURT’S ORIGINAL
       DECISION HAS BEEN FILED.

       {¶18} In David’s assignment of error, he argues that Renee improperly filed

a “Motion for Reconsideration” after the trial court issued a final appealable order

and that the trial court should not have considered the motion as it was a “nullity.”

David further contends that even if the trial court could consider a “Motion for

Reconsideration” in these circumstances, the motion related to a substantive

change rather than a “clerical mistake” and it should not have been granted.

       {¶19} “The Ohio Rules of Civil Procedure do not recognize motions for

reconsideration after a final judgment in the trial court.” Ray v. Dickinson, 7th

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Dist. Belmont No. 03-BE-29, 2004-Ohio-3632, ¶ 14, citing Pitts v. Ohio Dept. of

Transp., 67 Ohio St.2d 378 (1981) at paragraph one of the syllabus. In fact, a trial

court is “without power to entertain” a “Motion to Reconsider” after a final

judgment is entered. Perez v. Angell, 10th Dist. Franklin No. 07AP-37, 2007-

Ohio-4519, ¶ 7. “A party may file a motion for reconsideration in a trial court

only to obtain relief from an interlocutory order or decision.” (Emphasis added.)

Ham v. Ham, 3d Dist. Wyandot No. 16-07-04, 2008-Ohio-828, ¶ 15, citing Frey v.

Frey, 3d Dist. Hancock No. 5-06-36, 2007-Ohio-2991, at ¶¶ 21-23; Civ.R. 54(B).

The proper vehicle for relief from a final judgment is a motion to vacate under

Civ.R. 60(B). Perez at ¶ 7, citing Civ.R. 60(B); Pitts, at 380.

       {¶20} “A trial court [does have] the authority to construe an improperly

captioned post-judgment motion [including a motion for reconsideration] as

though it were a Civ.R. 60(B) motion for relief from judgment.” Ohio State Aerie

Fraternal Order of Eagles v. Alsip, 12th Dist. Butler No. CA2013-05-079, 2013-

Ohio-4866, ¶ 18 (citations omitted); see also Perez v. Angell, 10th Dist. Franklin

No. 07AP-37, 2007-Ohio-4519, ¶ 6. In order to do so, this Court has held that the

trial court “must give the responding party notice of its intention to do so and an

opportunity to respond to the converted Civ.R. 60(B) motion before granting it.”

Ham, supra, at ¶ 16 citing Consolidated Rail Corp., v. Forest Cartage Co., 68

Ohio App.3d 333, 341 (8th Dist.1990) (additional citation omitted). Nevertheless,


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while a trial court does have the authority to construe a “motion for

reconsideration” as a Civ.R. 60 motion, it does not have authority to rule on a

“motion to reconsider” that is not a Civ.R. 60 motion. Perez at ¶ 7. Such a motion

is, as David suggests in his argument to this Court, a “nullity.” Id.

       {¶21} In this case, Renee’s “Motion for Reconsideration” argued that in the

Partial Final Judgment Entry the parties agreed to an equal division of the real

estate equity, but at that time no amount had yet been set aside for David’s

separate premarital contribution, which was determined in the final hearing and

awarded in the final judgment entry.           Renee’s motion argued that David’s

premarital contribution should have been deducted from the total equity, and then

the remaining equity should be divided in half.

       {¶22} After the parties had filed multiple motions, the trial court filed a

new final judgment on the matter, which read in pertinent part:

       Regarding Plaintiff’s Motion for Reconsideration, the Court
       finds that the Court erred in its calculation relating to the
       equalization of the marital real property and the separate
       property and that the proper equalization payment from
       Plaintiff to Defendant should have been $31,224.64 instead of
       $38,949.27 as previously ordered. It is therefore ORDERED
       that Plaintiff shall pay the sum of $31,224.64 to Defendant
       forthwith. The portion of the Court’s order dated October 28,
       2014 ordering the Plaintiff to pay $38,949.27 to the Defendant is
       hereby vacated.

(Doc. No. 118).



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       {¶23} The trial court’s entry thus agreed with Renee’s argument that it had

mistakenly awarded David one-half of the equity in the marital real property

before subtracting David’s separate property; however, the trial court did not

indicate in its “new final judgment entry,” or in any of the proceedings, that it had

converted Renee’s motion to a Civ.R. 60 motion. Thus while the trial court did

have the authority to treat Renee’s motion as a Civ.R. 60 motion, the trial court

gave no indication that it actually did treat the motion as such.

       {¶24} Moreover, the trial court’s entry contained no analysis related to

Civ.R. 60 from which we might conclude that it treated Renee’s motion as a

Civ.R. 60 motion. We can only assume then that the trial court treated the motion

as it was styled, as a “Motion for Reconsideration.” As previously stated, a

“Motion for Reconsideration” is a nullity, and the trial court could not entertain it.

Therefore, the actual final judgment entry in this case then remained the October

28, 2014, entry.

       {¶25} We would note that “App.R. 4(A) expressly provides that a notice of

appeal must be filed within 30 days of the filing of the entry of judgment appealed

from.” Pitts, 67 Ohio St.2d at 380. Additionally, “[t]he filing of a motion for

reconsideration does not toll the time requirement” for filing an appeal. Horak v.

Horak, 8th Dist. Cuyahoga No. 71930, 1997 WL 449976 (Aug. 7, 1997), citing

Zeff v. Rose Chevrolet, Inc., 62 Ohio App.3d 54 (12th Dist.1989). Finally, where


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no timely notice of appeal has been filed, a court lacks jurisdiction to determine an

appeal. Horak, citing Stein v. Wyandotte Wine Cellars, Inc., 88 Ohio App.3d 477

(10th Dist.1993).

       {¶26} Here, the trial court issued the only valid final judgment entry on

October 28, 2014. Renee did not appeal the final judgment entry filed October 28,

2014, nor did her motion for reconsideration toll the time for appeal, making her

appeal untimely under App.R. 4(A). See Ham, supra, 2008-Ohio-828, ¶¶ 17-20.

Accordingly, this court is without jurisdiction to determine Renee’s appeal.

       {¶27} Accordingly, we reiterate that the trial court should vacate its March

6, 2015, judgment granting Renee’s motion for reconsideration, and we dismiss

this appeal for lack of jurisdiction.

                                                                  Appeal Dismissed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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