         [Cite as Carnes v. Carnes, 2015-Ohio-2925.]
                               IN THE COURT OF APPEALS
                       FIRST APPELLATE DISTRICT OF OHIO
                               HAMILTON COUNTY, OHIO




MOLLY K. CARNES,                                  :    APPEAL NO. C-140520
                                                       TRIAL NO. DR-1400169
        Plaintiff-Appellant,                      :

  vs.                                             :      O P I N I O N.

FRANK CARNES, JR.,                                :

    Defendant-Appellee.                           :




Appeal From:        Hamilton County Court of Common Pleas, Domestic Relations
                    Division

Judgment Appealed from is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: July 22, 2015


Phillips Law Firm, Inc., and Alfred Wm. Schneble III, for Plaintiff-Appellant,

O’Connor Mikita & Davidson LLC and Michael J. O’Connor, for Defendant-Appellee.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Presiding Judge.

       {¶1}    Plaintiff-appellant Molly K. Carnes appeals from the judgment of the

Hamilton County Court of Common Pleas, Domestic Relations Division, denying her

Civ.R. 60(B) motion to set aside the divorce decree that terminated her “marriage” to

defendant-appellee Frank Carnes, Jr. Molly moved to set aside the decree several

months after the divorce had become final, claiming that the marriage was void

because information she had subsequently discovered demonstrated that Frank had

a wife at the time of the marriage. For the reasons that follow, we reverse the trial

court’s judgment, set aside the decree of divorce, and remand the cause for further

proceedings.

                      I. Background Facts and Procedure

       {¶2}    The parties married in November 2004 and had no children.           In

January 2014, Molly filed a complaint for divorce under R.C. 3105.01(K), on the

ground of incompatibility. She submitted with her complaint a marital settlement

and separation agreement (“separation agreement”), which was signed by both

parties, divided the marital property and obligations, and contained a clause that

precluded the separation agreement’s merger into a contemplated decree of divorce.

The settlement agreement, in part, required Molly to pay Frank $15,000 for his

portion of the marital equity in the marital residence and to transfer to Frank an IRA

retirement account.

       {¶3}    Frank consented to Molly’s request for the divorce. On April 1, 2014,

the trial court granted the divorce and adopted and incorporated the parties’

separation agreement into the decree of divorce.




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       {¶4}   On June 16, 2014, Molly moved to vacate the divorce decree. She

contended that her marriage to Frank was void because Frank had a spouse named

Tricia Jean Green at the time of the marriage, and that she should have the

opportunity to terminate her marriage on the basis of this newly discovered bigamy.

She also claimed that Frank had defrauded her, and that she had timely moved for

relief from the judgment. The trial court held a hearing to verify Molly’s facts before

ruling on her motion.

       {¶5}   At the hearing, Molly testified that an unusual posting by Tricia on

Frank’s son’s Facebook page that she had observed two weeks after the finalization of

the divorce compelled her to view Tricia’s Facebook page. There Molly had observed

posts in which Tricia indicated that she had married Frank in 1996 in Dearborn

County, Indiana, and that she remained his wife. Molly undertook an expansive

search of public records and confirmed Frank’s and Tricia’s marriage in 1996, but

she was unable to find any documentation of the termination of Frank’s and Tricia’s

marriage.

       {¶6}   Molly introduced several exhibits at the hearing, including the

marriage certificate of Frank and Tricia issued in Dearborn County, Indiana,

printouts of several Facebook pages containing Tricia’s mention of her marriage to

Frank, and Molly’s and Frank’s marriage license application in which Frank had

indicated that he had not been previously married.

       {¶7}   In opposing Molly’s motion, Frank testified that he and Tricia had

married in Dearborn County, Indiana, in 1996, while he was incarcerated in the

Dearborn County Justice Center, but that he believed that the marriage had been

“overturned.” His belief was based on a note requesting the dissolution that he had

submitted to a police officer at the jail one week after his marriage to Tricia.



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Although Frank recalled that the note had been returned to him marked “granted,”

he conceded that he no longer had the document and that Dearborn County had no

record of it or any other record of the purported termination of the marriage.

       {¶8}    Importantly, contrary to Molly’s testimony, Frank claimed that Molly

had known about his marriage to Tricia and the purported dissolution. Ultimately,

though, he claimed to be just as surprised as Molly to learn that Dearborn County did

not have any record of his dissolution.

       {¶9}    Frank urged the court to deny Molly’s motion, even though he

conceded that Molly had demonstrated her ability to present a legitimate defense if

relief were granted. The trial court apparently adopted Frank’s position and denied

the motion to set aside the divorce decree. Molly now appeals, assigning as error the

trial court’s “fail[ure] to set aside the divorce decree.”

                                      II. Analysis

       {¶10} We review the trial court’s denial of the Civ.R. 60(B) motion under an

abuse-of-discretion standard. Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d

914 (1994); Scheper v. McKinnon, 177 Ohio App.3d 820, 2008-Ohio-3964, 896

N.E.2d 208, ¶ 8 (1st Dist.). Therefore, the trial court’s decision will not be reversed

unless it is arbitrary, unconscionable, or unreasonable.       Scheper at ¶ 8.     “An

unreasonable decision is one that no sound reasoning process supports.” Bank of

N.Y. Mellon v. Martin, 1st Dist. Hamilton No. C-140314, 2015-Ohio-2531, ¶ 26.

       {¶11} Civ.R. 60(B) states in part:

               On motion and upon such terms as are just, the court

               may relieve a party or his legal representative from a

               final judgment * * * for the following reasons: (1)

               mistake, inadvertence, surprise or excusable neglect; (2)



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                    OHIO FIRST DISTRICT COURT OF APPEALS



              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.

       {¶12} To prevail on her motion under Civ.R. 60(B), Molly was required to

demonstrate that she has a meritorious defense or claim to present if relief is

granted; that she is entitled to relief under one of the grounds set forth in Civ.R.

60(B)(1)-(5); and that she made the motion within a reasonable time, and where the

grounds of relief are found in Civ.R. 60(B)(1), (2), or (3), not more than one year

after the judgment of the court granting the divorce decree. See GTE Automatic

Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976),

paragraph two of the syllabus.

       {¶13} Civ.R. 60(B) was adopted to provide an exception to the “finality of

judgment rule,” and allows for relief from judgment under the proper circumstances

when it is in the “interest of fairness and justice.” Adomeit v. Baltimore, 39 Ohio

App.2d 97, 101, 316 N.E.2d 469 (8th Dist.1974). We must “liberally construe” this

“remedial rule.” Blasco v. Mislik, 69 Ohio St.2d 684, 685, 433 N.E.2d 612 (1982).




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                       A. Meritorious Claim to Present

       {¶14} The first issue we review is whether Molly sufficiently demonstrated

that she has a meritorious claim to present if relief is granted. Molly argues in part

that if the decree of divorce is set aside, she has a meritorious claim to present, in

that she is entitled to a divorce or annulment on the ground that Frank had a living

spouse at the time of the marriage. We agree.

       {¶15} In Ohio, a marriage is presumed to continue until the death of a

spouse or the entry of a court decree dissolving the marriage. Indus. Comm. v. Dell,

104 Ohio St. 389, 401, 135 N.E. 669 (1922).        Where two marriages have been

“solemnized” and the record is silent as to whether there has been a divorce of the

parties to the first marriage, there is a presumption that the status of the parties to

the first marriage continues. Id. at paragraph three of the syllabus, cited in Kaur v.

Bharmota, 182 Ohio App.3d 696, 2009-Ohio-2344, 914 N.E.2d 1087, ¶ 8 (10th

Dist.). The burden is on the party claiming the validity of the second marriage to

overcome the presumption. Id.      If that presumption is not overcome, the second

marriage is determined to be bigamous and void. See Evans v. Indus. Comm., 166

Ohio St. 413, 414, 143 N.E.2d 705 (1957); Dibble v. Dibble, 88 Ohio App. 490, 511,

100 N.E.2d 451 (5th Dist.1950).

       {¶16} Although a bigamous marriage is void, Darling v. Darling, 44 Ohio

App.2d 5, 7, 335 N.E.2d 708 (8th Dist.1975), the domestic-relations statutes allow for

a divorce. See Eggleston v. Eggleston, 156 Ohio St. 422, 103 N.E.2d 395 (1952)

(interpreting similar predecessor law under the General Code), cited in Bubsey v.

Oleyar, 8th Dist. Cuyahoga Nos. 76226 and 76267, 2000 Ohio App. LEXIS 2255

(May 25, 2000). Where a divorce is sought in this situation, the party seeking the

divorce must proceed on the ground that the other party had a husband or wife at the



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                        OHIO FIRST DISTRICT COURT OF APPEALS



time of the marriage, as provided in R.C. 3105.01(A). See Bubsey, citing Eggleston at

paragraph one of the syllabus. A party in that situation may alternatively seek an

annulment on the same grounds. See R.C. 3105.31(B).

       {¶17} Thus, Molly met the first prong of the Civ.R. 60(B) test as she

demonstrated that she has a meritorious claim to present if relief is granted—the

ground for divorce set forth in R.C. 3105.01(A) or the ground for an annulment set

forth in R.C. 3105.31(B).

                                B. Ground for Relief

       {¶18} The next issue is whether Molly stated one of the grounds for relief

under Civ.R. 60(B). Molly argues that relief was most appropriate on the basis of

newly discovered evidence, in accordance with Civ.R. 60(B)(2). But we disagree that

Civ.R. 60(B)(2) was the operable provision.

       {¶19} To qualify as newly discovered evidence as contemplated under Civ.R.

60(B)(2), the new evidence must not have been discoverable by due diligence within

the time limits set forth for a motion for a new trial.       See Cuyahoga Support

Enforcement Agency v. Guthrie, 84 Ohio St.3d 437, 442, 705 N.E.2d 318 (1999);

Smith v. Smith, 8th Dist. Cuyahoga No. 83275, 2004-Ohio-5589, ¶ 16. Here, the

evidence of the bigamy was available when Molly filed for divorce. And with due

diligence, she could have discovered the bigamy in time to move for a new trial under

Civ.R. 59(B).

       {¶20} But Molly never looked, because Frank’s marital status at the time of

his marriage to Molly was not an issue in the divorce proceedings. According to the

testimony, both parties believed that their marriage was valid; Molly filed for divorce

on the ground of incompatibility, as set forth in R.C. 3105.01(K), and Frank did not

challenge that basis.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶21} Although Molly cannot be afforded relief under Civ.R. 60(B)(2), the

operative facts that she presented in support of her motion satisfied the condition of

“mistake” as contemplated by Civ.R. 60(B)(1). She demonstrated that she filed for

divorce under R.C. 3105.01(K) under the misconception that she was legitimately

married to Frank.

       {¶22} While Molly did not refer to Civ.R. 60 (B)(1) or use the term “mistake”

when presenting this issue in the trial court proceedings and in her argument on

appeal, this issue was necessarily a subpart of her motion to vacate based on her

recent discovery of the bigamy.     Thus, the evidentiary basis for this issue was

adduced before the trial court, Frank had the opportunity to challenge it, and this

court may address it, even if Molly did not articulate it as such, unless we put form

over substance, in contradiction to the remedial purpose of Civ.R. 60(B). See C.

Miller Chevrolet, Inc. v. Willoughby Hills, 38 Ohio St.2d 298, 301, 313 N.E.2d 400

(1974) (“[I]t is evident from the discretionary language employed in App.R. 12(A)

that a court of appeals may pass upon an error which was neither assigned nor

briefed by a party.”); State v. Peagler, 76 Ohio St.3d 496, 668 N.E.2d 489 (1996),

syllabus (“While an appellate court may decide an issue on grounds different from

those determined by the trial court, the evidentiary basis upon which the court of

appeals decides a legal issue must have been adduced before the trial court and made

a part of the record thereof.”).

       {¶23} Frank merely argues now, as he did in the trial court, that there is

conflicting evidence concerning when Molly learned of his marriage to Tricia and

whether his marriage to Tricia was ever terminated. But this first identified conflict,

as explained below, is irrelevant to our analysis because there is no conflict in the

evidence with respect to the fact that Molly learned of the bigamy after the divorce.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



The second identified conflict is not a conflict—Frank failed to overcome the

presumption that his marriage to Tricia continued. See Dell, 104 Ohio St. 389, 135

N.E. 669, at paragraph three of the syllabus; Evans, 166 Ohio St. at 414, 143 N.E.2d

705.

        {¶24} The trial court, in ruling on Molly’s motion to vacate the divorce

decree, appeared to focus solely on Molly’s contention that she only recently had

discovered that Frank and Tricia had married. While the court found that claim

dubious, the court failed to consider that the evidence only showed that at the time of

Molly’s and Frank’s divorce, both Molly and Frank had believed that their marriage

was valid and not void due to the purported bigamy. This evidence established that

the mistake was a mutual mistake of a material fact and, thus, a ground to vacate the

decree of divorce. See Smith, 8th Dist. Cuyahoga No. 83275, 2004-Ohio-5589, at

¶ 17.

                          C. Timeliness of the Motion

        {¶25} The final issue is whether Molly’s motion was timely filed. Under the

rule, the motion must be made within a reasonable time, and where the

circumstances presented fall under Civ.R. 60(B)(1), no later than one year.

        {¶26} In this case, Frank has never challenged the timeliness of the motion,

and the trial court did not expressly address this issue. But the record demonstrates

that Molly filed the motion to vacate less than three months after the issuance of the

divorce decree, after undertaking an exhaustive search of the public records to

substantiate Tricia’s claim that she remained married to Frank. We determine under

these facts that the motion was timely filed.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                             D. Abuse of Discretion

         {¶27} Considering this record, we conclude that the trial court abused its

discretion when it denied Molly’s motion to set aside the divorce decree, as the

court’s decision cannot be supported by any sound reasoning process. Although a

claim under Civ.R. 60(B) requires a careful balancing of the two “conflicting

principles of finality and perfection,” Guthrie, 84 Ohio St.3d at 441, 705 N.E.2d 318,

this case does not involve a determination that makes finality most compelling, such

as parentage, visitation, or support of a minor. See Strack, 70 Ohio St.3d 172, 637

N.E.2d 914. While there is a compelling need for finality in the termination of

marriages, see In re Whitman, 81 Ohio St.3d 239, 243-243, 690 N.E.2d 535 (1998),

there is nothing in the record to suggest that either Molly or Frank has remarried

since the entry of the divorce decree.

         {¶28} Molly’s motivation for moving to vacate is a factor to be considered

also in determining whether she may obtain that relief. See id. at 243. Frank argues

that she was motivated by a desire to avoid her financial obligations to him under the

separation agreement. But that separation agreement, by its own terms, is a contract

that did not merge into the decree of divorce. Therefore, Molly’s desire to avoid

those obligations should have been afforded little weight in determining whether the

decree that misrepresents the legal relationship between the parties should be set

aside.

         {¶29} The court has an important interest in correcting the record, and

Civ.R. 60(B) should be used when it is equitable to do so. See Tom Sweeney, Inc. v.

Porter, 1st Dist. Hamilton No. C-980337, 1999 Ohio App. LEXIS 1914 (Apr. 30,

1999). Thus, we sustain the assignment of error.




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                                 III. Conclusion

       {¶30} Because Molly established that the parties were mistaken as to the

validity of their marriage, that she should have proceeded under a different statutory

provision in terminating her marriage, and that she timely filed her Civ.R. 60(B)

motion, she was entitled to relief from judgment. Accordingly, we reverse the trial

court’s judgment denying Molly’s Civ.R. 60(B) motion, vacate the divorce decree,

and remand this cause for further proceedings consistent with the law and this

opinion.

                                               Judgment reversed and cause remanded.


MOCK, J., concurs
DEWINE, J. dissents.

D E W INE , J., dissenting.


       {¶31} I must respectfully dissent. The majority in this case exceeds the

appropriate limits of appellate review by choosing to upset a final judgment on a

ground that was not raised below and that finds only tenuous support in the record.

       {¶32} A tenet of our system of review is the idea that appellate courts should

not ordinarily pass on issues not raised in the trial court. We don’t impose this rule

to be pedantic or mean-spirited; rather, we adhere to it because it advances not only

the orderly administration of justice but also the interests of fundamental fairness.

In the words of the Supreme Court, “[f]airness, which is required for the operation of

the adversary system of justice, requires at least that the parties be allowed in the

trial court to present evidence that would support or refute the legal theory

addressed by the court of appeals.” Peagler, 76 Ohio St.3d at 499, 668 N.E.2d 489.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



          {¶33} The majority grants relief under Civ.R. 60(B)(1), which allows for relief

from judgment for mutual “mistake.” In the trial court, Molly sought relief under

Civ.R. 60(B)(3) for fraud. She also made passing reference to “newly discovered

evidence,” a basis for relief under Civ.R. 60(B)(2). Nowhere was any mention made

of “mistake” as a basis for relief. Frank’s attorney, we may presume, tailored the

evidence presented to the legal arguments raised. We have no way of knowing if he

would have presented anything different had the issue been one of mutual mistake.

Thus, it seems fundamentally unfair for the majority to decree that the judgment be

reopened for a mutual mistake when that argument was not raised below.

          {¶34} Not only was mistake not presented below, it was not raised here

either.     The sole issue presented for review was that Molly was entitled to relief

based on newly discovered evidence under Civ.R. 60(B)(2). We should be hesitant

to reverse the judgment of a trial court for a reason not even raised by the parties in

their briefs.

          {¶35} The evidence that the majority bases its decision on is not all that

strong, either. In order to find mutual mistake, it had to credit Frank’s rather

incredulous story that he engaged in a sham marriage, which he believed was

annulled because of some note he received from prison officials that he had in his

possession a few years ago but has now lost.          It had to discount the evidence

introduced from Tricia’s Facebook posts that made the marriage seem like much

more than was represented by Frank. And the court had to create its own view of

Molly’s testimony. At trial, she testified she knew nothing about Frank’s marriage to

Tricia. The trial court didn’t believe her, concluding that her “testimony concerning

her 10-year marriage to Husband and her knowledge, or lack thereof, concerning

Husband’s prior wife (wives) did not suffice to convince the Court.” But the majority



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nonetheless concludes “that the evidence only showed that at the time of the divorce,

both Molly and Frank had believed their marriage was valid and not void due to the

purported bigamy.”

       {¶36}   This view of the evidence seems a stretch, at best. While there was no

evidence presented at the hearing directly contradicting the unadvanced mutual

mistake theory, the evidence in support was extremely weak. It hardly seems the

type of evidence an appellate court should rely upon in reversing a trial court’s

decision and disturbing a final judgment.

       {¶37} A court abuses its discretion when its “attitude is unreasonable,

arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983). Finding nothing of the kind in the trial court’s decision, I

dissent.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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