[Cite as Dixson v. Froelich, 2019-Ohio-3971.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

SANDRA DIXSON                                         C.A. Nos.      28787
                                                                     28793
        Appellant/Cross-Appellee

        v.
                                                      APPEAL FROM JUDGMENT
THOMAS FROELICH                                       ENTERED IN THE
                                                      COURT OF COMMON PLEAS
        Appellee/Cross-Appellant                      COUNTY OF SUMMIT, OHIO
                                                      CASE No.   DR-2010-06-1769

                                 DECISION AND JOURNAL ENTRY

Dated: September 30, 2019



        TEODOSIO, Judge.

        {¶1}    Appellant, Sandra Dixson, and cross-appellant, Thomas Froelich Jr., appeal the

judgment of the Summit County Court of Common Pleas, Domestic Relations Division,

overruling objections and adopting the magistrate’s decision of April 29, 2014. We reverse.

                                                 I.

        {¶2}    On June 16, 2010, Sandra Dixson and Thomas Froelich Jr. filed a petition for the

dissolution of their marriage. A decree of dissolution was entered on July 28, 2010, which

attached and incorporated a separation agreement entered into and signed by the parties. In

pertinent part, the agreement provided for the division of property as agreed to by Ms. Dixson

and Mr. Froelich. The agreement included a provision for the trial court to retain jurisdiction to

modify the property division in the event that either party failed to make full disclosure.

        {¶3}    On June 8, 2011, Ms. Dixson filed a motion to enforce decree, alleging that Mr.

Froelich had not fairly and accurately disclosed his assets and income in the affidavit presented
                                                 2


to the trial court and in his negotiations with Ms. Dixson. On November 1, 2011, Ms. Dixson

filed an amended motion to enforce decree and motion for partial relief from judgment pursuant

to Civ.R. 60(B). Mr. Froelich filed responses to both the original motion and the amended

motion. In December 2011, a hearing was conducted on the issue of the timeliness of Ms.

Dixson’s Civ.R. 60(B) motion. On February 15, 2012, the trial court found that the motion was

timely and that the motion filed on November 1, 2011 “relate[d] back” to the motion filed on

June 8, 2011.

       {¶4}     An evidentiary hearing was held before the magistrate on multiple days in

September and November of 2013, with the magistrate issuing a decision on April 29, 2014, and

the trial court adopting the decision pursuant to Civ.R. 53(D)(4)(b).         The entry awarded

$65,605.50 against Mr. Froelich by stipulation of the parties, $48,500.00 against Mr. Froelich for

Ms. Dixson’s share of a 2009 tax return, and $40,000.00 against Mr. Froelich for Ms. Dixson’s

attorney fees. Both parties filed objections to the magistrate’s decision, with the trial court

overruling objections and entering judgment on August 29, 2017. Ms. Dixson now appeals,

raising three assignment of error. Mr. Froelich has cross-appealed, raising four assignments of

error. For the purposes of our analysis, we first address the cross-appeal of Mr. Froelich.

                                                II.

                   CROSS-APPELLANT’S ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT LACKED JURISDICTION TO CONSIDER THE
       MOTION FOR RELIEF FROM JUDGMENT FILED MORE THAN
       ONE[]YEAR AFTER THE ENTRY OF THE DECREE OF DISSOLUTION.

       {¶5}     In his first assignment of error, Mr. Froelich argues the trial court lacked

jurisdiction to consider the motion for relief from judgment that was filed more than one year

after the decree of dissolution. We agree.
                                                 3


       {¶6}       The trial court entered the decree of dissolution with the attached separation

agreement on July 28, 2010. On June 8, 2011, Ms. Dixson filed her motion to enforce decree,

moving the trial court “for an order enforcing the parties’ Separation Agreement incorporated

into their decree of dissolution dated July 28, 2010” on the grounds “that [Mr. Froelich] did not

fairly and accurately disclose his financial assets and income in his affidavit presented to [the

trial] court or in his negotiations with [Ms. Dixson].” The separation agreement provided, in

pertinent part:

       If either party has failed to make full disclosure, then this Agreement shall
       become voidable and the Court shall, upon such subsequent discovery of assets of
       either party, retain full jurisdiction to modify the original property division as set
       forth in this Agreement, taking into account the undisclosed asset in such
       distribution. The parties further agree that in the event that non-disclosure of
       assets necessitates further legal action after the execution of this Agreement, the
       party who has failed fully to disclose assets agrees to pay the reasonable and
       necessary attorney’s fees incurred in bringing the non-disclosure to the Court’s
       attention and in procuring a new property settlement.

       {¶7}       On November 1, 2011, Ms. Dixson filed a motion captioned as “AMENDED

MOTION[:] A. MOTION TO ENFORCE DECREE[;] B. MOTION FOR PARTIAL RELIEF

FROM JUDGMENT CIV.R. 60(B)[.]” A hearing was conducted on December 21, 2011, as to

the timeliness of Ms. Dixson’s Civ.R. 60(B) motion, and by its entry of February 15, 2012, the

trial court found the motion timely, stating:

       This Court issued the Divorce Decree on July 28, 2010. Defendant filed a motion
       to enforce the decree on June 8, 2011, and an amended motion for relief from
       judgment on November 1, 2011. The November 1, 20011[,] amended motion
       relates back to the June 8, 2011[,] motion. Therefore, Plaintiff’s motion is timely
       and an evidentiary hearing is necessary to determine if Defendant failed to
       disclose his assets and if so, whether or not Plaintiff is entitled to relief under the
       grounds plead in her motion.

       {¶8}       After an evidentiary hearing was held over multiple days in September and

November of 2013, a magistrate’s decision was issued and adopted by the trial court on April 29,
                                                 4


2014.   The entry awarded $65,605.50 against Mr. Froelich by stipulation of the parties,

$48,500.00 against Mr. Froelich for Ms. Dixson’s share of a 2009 tax return, and $40,000.00

against Mr. Froelich for Ms. Dixson’s attorney fees. The trial court overruled objections by both

parties on August 29, 2017, and stated that it would not disturb the previous ruling that had

determined Ms. Dixson’s Civ.R. 60(B) motion had been timely.

        {¶9}   With regard to the modification of the division of property within a decree of

dissolution, the Supreme Court of Ohio has held:

        [I]n 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.

In re Whitman, 81 Ohio St.3d 239, 244 (1998). The Whitman Court went on to

add:

        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.

Id. at 245. Whitman thus limited a trial court’s continuing jurisdiction to modify the division of

property in a decree of dissolution to circumstances where the parties have expressly agreed to

do so in a separation agreement incorporated into the decree, and when moving pursuant to

Civ.R. 60(B), only under motions brought under subsections (B)(1), (2), or (3), whereby the
                                                5


requirement to bring the motion within one year of the decree would substantially preserve the

finality of judgment.

       {¶10} With regard to a motion to modify or vacate judgment made under Civ.R. 60(B),

the decision to grant or deny such a motion is within the sound discretion of the trial court.

Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987); Jackson v. Coker, 9th Dist. Summit No. 27123,

2014-Ohio-5114, ¶ 8. An abuse of discretion is more than an error of judgment; it means that the

trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore,

5 Ohio St.3d 217, 219 (1983). When applying this standard, a reviewing court is precluded from

simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66

Ohio St.3d 619, 621 (1993).

       {¶11} Civ.R. 60(B) authorizes the trial court to grant relief from a final judgment as

follows:

       On motion and upon such terms as are just, the court may relieve a party or his
       legal representative from a final judgment, order or proceeding for the following
       reasons: (1) mistake, 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. The motion shall be
       made within a reasonable time, and for reasons (1), (2) and (3) not more than one
       year after the judgment, order or proceeding was entered or taken. A motion
       under this subdivision (B) does not affect the finality of a judgment or suspend its
       operation.

       {¶12} In order to prevail on a motion brought pursuant to Civ.R. 60(B), the moving

party 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
                                                6


       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., 47 Ohio St.2d 146 (1976) paragraph two of

the syllabus. “[A]ny claims for relief from judgment under Civ.R. 60(B)(1), (2), or (3) [are]

untimely [where a movant fails] to file his Civ.R. 60(B) motion within one year of the judgment

entered against him.” Fairbanks Capital Corp. v. Heirs at Law, 9th Dist. Summit No. 22733,

2005-Ohio-6459, ¶ 9. “The requirements of Civ.R. 60(B) are stated in the conjunctive; if one of

the requirements [is] not met, relief from judgment cannot be granted.” Wolotsky v. Portage Path

Community Mental Health Ctr., 9th Dist. Summit No. 16827, 1995 WL 217032, *2 (Apr. 12,

1995), citing Strack v. Pelton, 70 Ohio St.3d 172, 174 (1994).

       {¶13} The trial court’s finding that the November 1, 2012, motion “related back” to the

motion to enforce the decree filed on June 8, 2011, is not supported by the Ohio Rules of Civil

Procedure. The doctrine of “relation back” is normally limited to the amendment of pleadings

pursuant to Civ.R. 15(C). Moreover, even though the trial court may have had discretion to

allow for Ms. Dixson to supplement her June 8, 2011, motion to enforce the decree with the

subsequent amended motion to enforce the decree, we cannot extend this application to the

requirements of Civ.R. 60(B).

       {¶14} The June 8, 2011, motion to enforce the decree was not filed pursuant to Civ.R.

60(B) and does not prescribe to any of the requirements for a Civ.R. 60(B) motion, either in form

or substance. Ms. Dixson did not file a motion for relief under Civ.R. 60(B) until November 1,

2012, more than one year after the decree of dissolution was entered on July 28, 2010. As we

have discussed, Whitman provides that modification to the division of property in a decree of

dissolution, where the parties have expressly agreed to such in a separation agreement

incorporated into the decree, and where a party has moved for relief under Civ.R. 60(B), may be
                                               7


accomplished only under motions brought under Civ.R. 60(B)(1), (2), or (3), whereby the

requirement to bring the motion within one year of the decree would substantially preserve the

finality of judgment. Because Ms. Dixson’s Civ.R. 60(B) motion was not made within one year

of the decree of dissolution, the requirements for a motion under Civ.R. 60(B)(1), (2), or (3)

were not met. Consequently, the trial court erred when it found the motion to be timely and

granted relief from judgment.

       {¶15} We note that the trial court’s analysis was limited to Ms. Dixson’s motion under

Civ.R. 60(B). We therefore decline to reach any conclusions with regard to Ms. Dixson’s

motion to enforce decree.

       {¶16} Mr. Froelich’s first assignment of error is sustained.

                 CROSS-APPELLANT’S ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT DID NOT DETERMINE THAT THE MOTION WAS
       TIMELY OR IN THE ALTERNATIVE THE TRIAL COURT’S FINDING
       THAT THE MOTION FOR RELIEF WAS TIMELY WAS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.

                CROSS-APPELLANT’S ASSIGNMENT OF ERROR THREE

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT AWARDED
       JUDGMENT OF ONE-HALF OF THE 2009 TAX REFUND.

                 CROSS-APPELLANT’S ASSIGNMENT OF ERROR FOUR

       THE TRIAL COURT’S AWARD OF ATTORNEY’S FEES WITHOUT ANY
       EVIDENTIARY SUPPORT WAS AN ABUSE OF DISCRETION AND WAS
       NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE.

                      APPELLANT’S ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED BY DENYING [MS. DIXSON] HER BASIC
       DUE PROCESS RIGHTS.
                                                 8


                       APPELLANT’S ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED BY DENYING [MS. DIXSON’S] REQUEST TO
       SET ASIDE HER DECREE OF DISSOLUTION.

                     APPELLANT’S ASSIGNMENT OF ERROR THREE

       THE TRIAL COURT ERRED IN FAILING TO CONDUCT                                   AN
       INDEPENDENT REVIEW OT THE MAGISTRATE’S DECISION.

       {¶17} We decline to address the remaining assignments of error because of our

determination of Mr. Froelich’s first assignment of error. See App.R. 12(A)(1)(c).

                                                III.

       {¶18} Mr. Froelich’s first assignment of error is sustained. We decline to address the

remaining assignments of error as they have been rendered moot. The judgment of the Summit

County Court of Common Pleas, Domestic Relations Division, is reversed, except as to the

stipulated award of $65,605.50 to be paid by Mr. Froelich to Ms. Dixson.

                                                                             Judgment reversed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                9


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant/Cross-Appellee.




                                                    THOMAS A. TEODOSIO
                                                    FOR THE COURT




HENSAL, J.
CONCURS.

SCHAFER, P.J.
DISSENTING.

       {¶19} Because I do not agree that the trial court abused its discretion in addressing Ms.

Dixson’s request for relief from the division of property in the separation agreement incorporated

into the dissolution decree, I respectfully dissent. The majority’s narrow reading and application

of Whitman results in an unjust outcome upon the present facts. In Whitman, the Court held that,

in a dissolution, “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.” In re Whitman, 81 Ohio St.3d 239, 244 (1998). Whitman limited its holding to motions

brought under Civ.R. 60(B)(1), (2), and (3), which must be asserted within one year, in order to

further promote finality in dissolution proceedings. Id. However, the permanency and finality

concerns of Whitman are inapplicable in the present matter where, unlike Whitman, the parties’

separation agreement not only contained a provision for the court to modify the property
                                                  10


division, but also included an explicit provision that the agreement was voidable, modifiable, and

within the court’s jurisdiction, in the event that either party failed to make a full disclosure.

       {¶20} In her June 8, 2011 motion, Ms. Dixson asserted that Mr. Froelich failed to fairly

and accurately disclose his financial assets and petitioned the court to exercise its jurisdiction to

modify the division of property pursuant to the terms of the parties’ separation agreement. Her

motion of November 1, 2011, reiterated these claims and, additionally, requested relief pursuant

to Civ.R. 60(B). Either of Ms. Dixson’s motions was sufficient to invoke the jurisdiction of the

court to determine the validity of the separation agreement in light of her allegations, permit

discovery of the parties’ assets, and modify the original property division “taking into account

the undisclosed asset[s] in such distribution.”

       {¶21} I would conclude that Ms. Dixson was entitled to relief under the explicit terms of

the separation agreement. Therefore, even if the trial court erred in relying on Civ.R. 60(B) in

granting her relief, the result was correct and the error was harmless. “An appellate court shall

affirm a trial court’s judgment that is legally correct on other grounds, that is, one that achieves

the right result for the wrong reason, because such an error is not prejudicial.” In re Estate of

Baker, 9th Dist. No. 07CA009113, 2007-Ohio-6549, at ¶ 15. Accordingly, I would overrule Mr.

Froelich’s first assignment of error and address the remaining assignments of error on the merits.


APPEARANCES:

LESLIE S. GRASKE, Attorney at Law, for Appellant/Cross-Appellee.

SUSAN K. PRITCHARD, Attorney at Law, for Appellant/Cross-Appellee.

RANDAL LOWRY, Attorney at Law, for Appellee/Cross-Appellant.

KENNETH GIBSON, Attorney at Law, for Appellee/Cross-Appellant.
