[Cite as Seitz v. Seitz, 2011-Ohio-1826.]




          IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

JOHN M. SEITZ                                       :

        Plaintiff-Appellant                         : C.A. CASE NO. 2010 CA 9

v.                                                  : T.C. NO.     08DR200

GAIL R. SEITZ                                       :    (Civil appeal from Common
                                                         Pleas Court, Domestic Relations)
        Defendant-Appellee                   :

                                                    :

                                            ..........

                                            OPINION

                          Rendered on the    15th   day of       April    , 2011.

                                            ..........

DOUGLAS W. GEYER, Atty. Reg. No. 0022738, 451 Upper Valley Pike, Springfield, Ohio
45504
      Attorney for Plaintiff-Appellant

VALERIE JUERGENS WILT, Atty. Reg. No. 0040413, 333 N. Limestone Street, Suite 104,
Springfield, Ohio 45503
       Attorney for Defendant-Appellee

                                            ..........

FROELICH, J.

        {¶ 1} John Seitz appeals from a Judgment Order and Decree of Divorce of the

Champaign County Court of Common Pleas, Domestic Relations Division, which ordered

him to pay spousal support to his former wife indefinitely, without retaining jurisdiction to
                                                                                                                                    2

modify the award.              He also appeals from a judgment granting Gail Seitz relief from

judgment pursuant to Civ.R. 60(B), and incorporating a spousal support arrearage that had

accumulated under the terms of their Legal Separation. For the following reasons, the decree

of divorce will be reversed and remanded for the limited purpose of entering an amended

order that retains jurisdiction over the award of spousal support.                                  The judgment granting

Civ.R. 60(B) relief will be affirmed.

                                                                       I

         {¶ 2} John and Gail Seitz were married in 1969.                                     In 2004, Mr. Seitz filed a

complaint for divorce in Clark County, Ohio, but the parties subsequently agreed to a legal

separation. The Clark County court’s “Agreed Entry and Decree of Legal Separation,”

which was filed in March 2006, stated that it was “financially impossible for the parties to

divorce,” in part because Mrs. Seitz had “significant health problems and need[ed] to remain

on [Mr. Seitz’s] health insurance policy.”                          The separation agreement provided for the

division of all marital property and established temporary spousal support of $480.76 per

week, based on Mr. Seitz’s approximate net annual income of $60,000.1 The Clark County

court retained jurisdiction over spousal support. Over the next two years, the parties filed

several motions to increase or decrease spousal support, and Mrs. Seitz filed one motion for a

finding of contempt because Mr. Seitz had failed to pay spousal support.

         {¶ 3} In April 2008, Mr. Seitz filed a Complaint for Divorce in Clark County. By

that time, however, neither party lived in Clark County, and the Clark County court dismissed


             1
              For an initial period, while the parties attempted to sell the marital home, Mrs. Seitz lived in the home while Mr. Seitz
   paid the mortgage, and he paid only $159.99 per week in spousal support.
                                                                                              3

the complaint for improper venue. In September 2008, Mr. Seitz filed a Complaint for

Divorce in Champaign County. He also filed a Motion to Decrease and/or Suspend Spousal

Support. In an Agreed Entry filed in the Clark County court, the issue of spousal support,

which had been addressed in the Decree of Legal Separation, was “transferred” to Champaign

County, to be addressed in the divorce action. According to the Champaign County Court of

Common Pleas (“the trial court”) in its Judgment Order and Decree of Divorce, the only

issues before it were the divorce and spousal support; the division of property, including

retirement benefits, had been “completely and appropriately resolved in the proceeding for

legal separation” in Clark County.

       {¶ 4} On February 16, 2010, the trial court granted the divorce and ordered Mr.

Seitz to pay spousal support in the amount of $1,250 per month for ten years, unless either

party died or Mrs. Seitz remarried. The trial court also ordered Mr. Seitz to pay for Mrs.

Seitz’s health insurance as along as she was eligible under COBRA. The trial court ordered

that, after ten years, Mr. Seitz should pay spousal support in the amount of $10,000 per year

for the remainder of Mrs. Seitz’s life, unless either party died or Mrs. Seitz remarried. The

trial court explicitly did not retain jurisdiction over its award of spousal support. At the time

of judgment, Mr. Seitz had a spousal support arrearage in the Clark County case; the trial

court’s judgment did not mention or address that arrearage.

       {¶ 5} On March 12, 2010, Mr. Seitz appealed from the Judgment Order and Decree

of Divorce. On March 29, 2010, Mrs. Seitz filed a cross-appeal. We filed an order to show

cause why Mrs. Seitz’s notice of cross-appeal should not be dismissed, because it was

untimely.
                                                                                                 4

       {¶ 6} On May 6, 2010, Mr. Seitz filed a Civ.R. 60(B) motion to vacate judgment in

the trial court on the basis that it had failed to retain jurisdiction over the issue of spousal

support.   He asked this court to stay all proceedings while the trial court considered

modification of its prior order.

       {¶ 7} On May 17, 2010, we rejected Mrs. Seitz’s explanation for the untimely filing

of her notice of appeal and dismissed her cross-appeal. Shortly thereafter, Mrs. Seitz filed a

motion in the trial court pursuant to Civ.R. 60(A) and (B) seeking “to correct clerical

oversight” in that the trial court had failed to include findings of fact in support of its decision

not to retain jurisdiction over spousal support and had failed to “preserve the spousal support

arrearage” that existed under the Decree of Legal Separation. She filed a “Supplemental

Motion Pursuant to Rule 60(B)(1),” which also related to the trial court’s failure to address

the spousal support arrearage that had accrued during their legal separation.

       {¶ 8} Mr. Seitz filed a motion to dismiss Mrs. Seitz’s Civ.R. 60(B) motion to vacate

on the grounds that she was attempting to use the motion as a substitute for an appeal. The

trial court denied Mr. Seitz’s motion to dismiss Mrs. Seitz’s Civ.R. 60(B) motion.

       {¶ 9} The trial court overruled Mr. Seitz’s Civ.R. 60(B) motion alleging that the

judgment should have been corrected to retain jurisdiction over spousal support. It also

overruled Mrs. Seitz’s motion under Civ.R. 60(A), which sought findings of facts in support

of the trial court’s decision not to retain jurisdiction over spousal support. It sustained Mrs.

Seitz’s Civ.R. 60(B) motion, finding that it had “inadvertently failed to recognize and

preserve the spousal support arrears” and retained jurisdiction over the arrearage in the future.

       {¶ 10} Mr. Seitz raises two assignments of error on appeal.
                                                                                              5

                                                   II

       {¶ 11} Mr. Seitz’s first assignment of error states:

       {¶ 12} “IT IS AN ABUSE OF DISCRETION FOR THE CHAMPAIGN COUNTY

COURT OF COMMON PLEAS, DOMESTIC DIVISION, TO DECLINE TO RESERVE

JURISDICTION OVER SPOUSAL SUPPORT WHEN THE COURT HAS AWARDED

SPOUSAL SUPPORT IN A SUBSTANTIAL AMOUNT WHICH IS TO CONTINUE FOR

A SIGNIFICANT PERIOD OF TIME.”

       {¶ 13} Mr. Seitz claims that the trial court abused its discretion in failing to retain

jurisdiction over spousal support.

       {¶ 14} “The decision [of] whether to retain jurisdiction to modify a spousal support

award is within the trial court’s discretion.” Board v. Board (March 23, 2001), Clark App.

No. 2000 CA 42, citing Ricketts v. Ricketts (1996), 109 Ohio App.3d 746, 755. A trial court

abuses its discretion when it acts in an unreasonable, arbitrary, or unconscionable manner.

Id.

       {¶ 15} We have held that it is an abuse of discretion not to reserve jurisdiction to

modify an award of spousal support that is to continue for a significant period of time. Dyer

v. Dyer (Jan. 22, 1992), Clark App. No. 2801; Canales v. Canales (March 17, 1989), Greene

App. No. 88CA52. Although the determination is a fact-sensitive one, we have held that a

trial court abused its discretion in failing to retain jurisdiction over a spousal support award

of as little as three years, finding that an award of such a duration was “long enough to justify

reservation of jurisdiction” because there was a substantial likelihood that the economic

conditions of the parties would change. Jackson v. Jackson (Nov. 8, 1996), Montgomery
                                                                                             6

App. No. 15795.     “*** Ohio courts generally agree that a trial court abuses its discretion in

failing to reserve jurisdiction when imposing an indefinite award of spousal support.”

Kuper v. Halback, Franklin App. No. 09AP-899, 2010-Ohio-3020, ¶62.

       {¶ 16} In this case, the evidence presented at the hearing established that Mrs. Seitz,

age 58, had no income other than spousal support, “no income history other than some

part-time clerical work at the church,” and no marketable skills. She was in “very poor

health,” with a “multitude of medical problems,” including diabetes, and with emotional

issues related to the death of a child many years earlier.          She was taking fourteen

medications each day. The court observed that her “sedentary lifestyle may contribute to or

exacerbate her claimed difficulties,” and that “no testimony, other than hers, indicates that

she is or should be an invalid from these ailments.”

       {¶ 17} Mr. Seitz, age 59, a trained electrician, had been laid off from Navistar and

was receiving unemployment compensation at the time of the hearing. He acknowledged a

possibility that he could be recalled to work in the future. He was in good health. He

expressed his opinion that Mrs. Seitz had not fully explored or pursued other benefits to

which she might be entitled, if her physical and mental conditions were as debilitating as she

claimed.

       {¶ 18} The court found that the parties’ assets and liabilities were “comparable”

except that Mr. Seitz was required to pay $25,000 per year in spousal support pursuant to

their decree of legal separation. Their only retirement benefits were Mr. Seitz’s pension and

401(k), which had already been divided. According to the trial court, Mr. Seitz agreed that

Mrs. Seitz should be awarded spousal support, but disputed the amount sought by Mrs. Seitz.
                                                                                               7

 Mrs. Seitz argued that the issue of spousal support had been resolved in the Decree of Legal

Separation, and res judicata barred further consideration of the issue. In the alternative, she

sought $25,000 per year, or approximately $2,083 per month, for the rest of her life. Mr.

Seitz thought Mrs. Seitz should be awarded $9,000 per year, or $750 per month.

       {¶ 19} The trial court ordered Mr. Seitz to pay spousal support in the amount of

$15,000 per year ($1,250 per month) for ten years and to provide health insurance for Mrs.

Seitz for as long as she was eligible for coverage under COBRA. The trial court further

ordered that, after the initial ten year period, Mr. Seitz would be required to pay spousal

support in the amount of $10,000 per year (approximately $833 per month).           In any event,

spousal support was to continue until Mrs. Seitz’s death or remarriage.

       {¶ 20} With the facts before it, the trial court abused its discretion in failing to retain

jurisdiction over spousal support when it imposed a significant and indefinite award. As

noted above, a trial court arguably abuses its discretion in failing to retain jurisdiction over

any indefinite award. But in this case, the age of the parties, the fact that Mr. Seitz was

currently unemployed (but subject to recall) and dependent on unemployment compensation

at the time of the decree, and the fact that Mrs. Seitz had medical problems (the severity and

length of which were apparently in dispute) and was potentially eligible for disability or other

benefits contributed to the likelihood that the economic conditions would change and

provided additional reasons for the trial court to retain jurisdiction.       This retention of

jurisdiction could work to the “benefit” of either Mr. or Mrs. Seitz, but the court should have

the future discretion to determine the effects of time and chance.

       {¶ 21} The first assignment of error is sustained.
                                                                                             8

                                                   III

       {¶ 22} Mr. Seitz’s second assignment of error states:

       {¶ 23} “IT IS AN ABUSE OF DISCRETION FOR THE COURT TO GRANT A

CIV.R. 60(B) MOTION WHEN THE DEFENDANT FAILED TO MAKE A TIMELY

APPEAL AND THE FACTUAL CIRCUMSTANCES RELATING TO THE FINAL

DECREE ARE NOT MATERIALLY DIFFERENT TO THOSE PRESENTED AT TRIAL.”

       {¶ 24} Mr. Seitz claims that the trial court erred in granting relief from judgment

“entirely based upon issues that could have been raised on timely appeal,” i.e., the court’s

failure to incorporate a spousal support arrearage into its decree of divorce.

       {¶ 25} “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, at paragraph two of the syllabus. Civ. R. 60(B)(1) permits trial courts to

relieve parties or their legal representatives from a final judgment for “mistake, inadvertence,

surprise or excusable neglect,” and Mrs. Seitz relied on this provision.

       {¶ 26} Civ.R. 60(B) motions for relief from judgment “cannot be used as a substitute

for a timely appeal or as a means to extend the time for perfecting an appeal from the original

judgment.” Key v. Mitchell, 81 Ohio St.3d 89, 91, 1998-Ohio-643; Harris v. Anderson, 109

Ohio St.3d 101, 102, 2006-Ohio-1934, at ¶9.
                                                                                      9

       {¶ 27} Motions for relief from judgment under Civ.R. 60(B) are addressed to

the sound discretion of the trial court, and the court’s ruling will not be disturbed on

appeal absent a showing of abuse of discretion. Griffey v. Rajan (1987), 33 Ohio

St.3d 75, 77; National City Mtge. Co. v. Johnson & Assoc. Financial Services, Inc.,

Montgomery App. No. 21164, 2006-Ohio-2364, ¶11.            To constitute an abuse of

discretion, the trial court’s decision must be unreasonable, arbitrary, or

unconscionable. Board, supra.

       {¶ 28} Mr. Seitz argues that Mrs. Seitz improperly used her Civ.R. 60(B)

motion as a substitute for an appeal and that the trial court should not have

addressed it.   In support of this argument, he relies on the timeline of events,

whereby Mrs. Seitz filed her Civ.R. 60(B) motion only after this court dismissed her

appeal on the basis that her notice of appeal had been untimely.

       {¶ 29} Although Mr. Seitz correctly observes that Mrs. Seitz’s Civ.R. 60(B)

motion was filed shortly after her appeal was dismissed, her then-dismissed notice

of appeal did not suggest that she sought a reversal of the trial court’s judgment

based on its failure to include the arrearage in its orders. She listed as “probable

issue(s) for review” the court’s abuse of discretion in granting the divorce and the

inadequacy of the court’s spousal support and “health care” orders.

       {¶ 30} The trial court had discretion in deciding whether to grant Mrs. Seitz’s

Civ.R. 60(B) motion for relief from judgment. Griffey, 33 Ohio St.3d at 77. In its

decision, the trial court stated that it had “inadvertently failed to recognize and

preserve the spousal support arrears [and] now corrects this oversight.” Mr. Seitz

does not dispute that an arrearage existed and does not appear to appeal the
                                                                                    10

court’s eventual decision on the inclusion of the arrearage, but only the court’s

authority even to consider it by way of a Civ.R. 60(B) motion. Based on the record

before us, if an arrearage existed and the trial court had intended to address it in the

divorce decree, it did not abuse its discretion in correcting this omission by granting

Mrs. Seitz’s Civ.R. 60(B) motion.

       {¶ 31} The second assignment of error is overruled.

                                              IV

       {¶ 32} The judgment and decree of divorce will be reversed and remanded

for the limited purpose of entering an amended order that retains jurisdiction over

the award of spousal support.       The judgment granting Civ.R. 60(B) relief will be

affirmed.

                                      ..........

HALL, J. and BROGAN, J., concur.

(Hon. James A. Brogan, retired from the Second District Court of Appeals, sitting by
assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Douglas W. Geyer
Valerie Juergens Wilt
Hon. Lori L. Reisinger
