[Cite as Viscomi v. Viscomi, 2012-Ohio-5721.]




         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                      No. 98405




                                JEFFREY VISCOMI
                                                PLAINTIFF-APPELLEE

                                                 vs.

                                 TAMARA VISCOMI
                                                DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                       Civil Appeal from the
                     Cuyahoga County Court of Common Pleas
                          Domestic Relations Division
                             Case No. CP-D-331243


       BEFORE:         Sweeney, P.J., S. Gallagher, J., and Rocco, J.

       RELEASED AND JOURNALIZED: December 6, 2012

ATTORNEY FOR APPELLANT

Jeffrey W. Krueger
J.W. Krueger, L.L.C.
P.O. Box 360135
Cleveland, Ohio 44136

ATTORNEY FOR APPELLEE

Joyce E. Barrett
800 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113


JAMES J. SWEENEY, P.J.:

       {¶1} Defendant-appellant Tamara Viscomi (“Wife”) appeals the court’s denial of her

motion for relief from judgment in this divorce case.   After reviewing the facts of the case

and pertinent law, we affirm.

       {¶2} On January 3, 2011, the court granted a divorce to Wife and Jeffrey Viscomi

(“Husband”).    The judgment entry    incorporated a separation agreement that the parties

entered into on December 14, 2010.   No direct appeal was filed from this judgment.
       {¶3} On August 19, 2011, Wife filed a motion for relief from judgment alleging that:

 Husband did not fully disclose his income and business interests and misrepresented the

value of the marital home; the separation agreement is inconsistent with the judgment entry;

she was under duress when she signed the separation agreement; the separation agreement is

not equitable; and the interrelationship between spousal support and child support violates

public policy.

       {¶4} On April 25, 2012, the court denied Wife’s motion for relief from judgment

finding that Wife failed to show she had a meritorious claim or defense, Wife was not entitled

to relief under Civ.R. 60(B), and the motion was untimely.   The court additionally found that

many, if not all, of Wife’s complaints stemmed from the separation agreement and “should

have been dealt with in a timely filed appeal.”    Wife appeals and assigns one error for our

review.

                                              I.

       The trial court erred in denying Appellant’s Motion for Relief from Judgment
       under Civil Rule 60(B).

       {¶5} We review a ruling on a Civ.R. 60(B) motion for relief from judgment under an

abuse of discretion standard. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 520 N.E.2d

564 (1988). An abuse of discretion is “more than an error of law or judgment; it implies that
the court’s attitude is unreasonable, arbitrary, or unconscionable.”         (Citations omitted.)

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶6}    In GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 150,

351 N.E.2d 113 (1976), the Ohio Supreme Court held that to prevail on a Civ.R. 60(B)

motion,

       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.

       {¶7}    The court should overrule a motion for relief from judgment if the movant fails

to establish any one of the three prongs of the GTE test.   Id. at 151.

       {¶8}    On appeal, Wife argues that she is entitled to relief from judgment under two

subsections of Civ.R. 60(B).    First, she requests relief under Civ.R. 60(B)(3), which states

that “the court may relieve a party * * * from a final judgment * * * for * * * fraud * * *,

misrepresentation or other misconduct of an adverse party * * *.”          Wife argues that the

“separation agreement demonstrates overreaching by [Husband] in this matter.”         Included in

this “overreaching” are Husband’s misrepresentation of their assets, the absence of child

support in the separation agreement, and the conflict of interest created “as a result of
[Husband’s] promise to pay [Wife’s] counsel the sum of $10,000 toward [Wife’s] attorney

fees.”

         {¶9}   To support her argument, Wife cites to the Ohio Supreme Court’s holding in

Gross v. Gross, 11 Ohio St.3d 99, 105, 464 N.E.2d 500 (1984), which states that antenuptial

agreements

         are valid and enforceable if three basic conditions are met: one, if they have

         been entered into freely without fraud, duress, coercion or overreaching; two, if

         there was a full disclosure, or full knowledge, and understanding, of the nature,

         value and extent of the prospective spouse’s property; and, three, if the terms do

         not promote or encourage divorce or profiteering by divorce.

         {¶10} Because this case does not involve the validity of an antenuptial agreement,

Gross does not apply.     Rather, the appropriate law for the court to consider when addressing

an allegation under Civ.R. 60(B)(3) is that “the party seeking relief bears the burden of

proving such fraud, misrepresentation, or misconduct by clear and convincing evidence.”

Settoni v. Settoni, 8th Dist. No. 97784, 2012-Ohio-3084, ¶ 25.

         {¶11} In Wife’s motion for relief from judgment, as well as her accompanying

affidavit, she states the following regarding Husband’s alleged overreaching: Wife signed the

separation under duress because Husband threatened that she “would fair much worse if the
case went to trial * * *, the pressure of the trial taking place during the holiday period, and the

anticipation of the children having to deal with their parents’ contentious matters during the

holiday.”       An allegation of duress includes

       (1) that one side involuntarily accepted the terms of another; (2) that

       circumstances permitted no other alternative; and (3) that said circumstances

       were the result of coercive acts of the opposite party. * * * The assertion of

       duress must be proven to have been the result of the defendant’s conduct and

       not by the plaintiff’s necessities.

(Emphasis and citation omitted.) Blodgett v. Blodgett, 49 Ohio St.3d 243, 246, 551 N.E.2d

1249 (1990).

       {¶12}     Upon review we find that Wife did not present sufficient operative facts to

allege the defense of duress or to demonstrate fraud, misrepresentation, or misconduct under

Civ.R. 60(B).    See Settoni, ¶ 27 (appellee’s assertion that appellant’s threats compelled him

to sign an unfair separation agreement “rises only to the level of a mere general allegation that

these events occurred” and does not justify relief under Civ.R. 60(B)(3)).         Wife does not

present any specific details, corroborating evidence, or legal authority to support her allegation

that she is entitled to relief from judgment.
       {¶13} Additionally, Wife argues that “the Decree of Divorce does not equitably divide

the parties’ marital assets [and Husband] did not make a full and true disclosure of the value(s)

of his numerous business interests,” which entitles her to relief under Civ.R. 60(B)(3).       To

the extent that Wife argues that “signing the separation agreement was not in her best

interest,” we find that the court acted within its discretion by ruling that this issue could have

been resolved through a direct appeal. Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio

St.3d 128, 129, 502 N.E.2d 605 (“a party may not use [a Civ.R. 60(B)] motion as a substitute

for a timely appeal”).

       {¶14}       Second, Wife requests relief under Civ.R. 60(B)(5), which is a catch-all

provision of the statute, providing that the motion may be granted for “any other reason

justifying relief from the judgment.”      Wife alleges that the separation agreement violates

public policy, because it makes her right to receive spousal support conditional on Husband

and Wife’s minor children residing with Wife.        This, she argues, “promotes or encourages

[Husband] to profiteer by interfering with the mother-child relationship.”    As support for this

argument, Wife cites to R.C. 3105.18, which lists factors a court shall consider when awarding

spousal support.

       {¶15}       R.C. 3105.18 is not applicable to the case at hand, however, because the court

incorporated into the divorce decree the terms of the separation agreement that Husband and
Wife voluntarily entered into. Thomas v. Thomas, 5 Ohio App.3d 94, 100, 449 N.E.2d 478

(5th Dist.1982).

        We hold that where, as here, a party has initiated negotiations leading to an
        “in-court” settlement stipulation incorporating essentially all of his demands, he
        should not be permitted to contend that the court in approving and adopting the
        bargain he struck has acted so unfairly as to constitute an abuse of discretion as
        a matter of law.

Id. at 98.

        { ¶ 16} Furthermore, Wife’s arguments challenging the terms of the separation

agreement could have been raised on direct appeal.

        Rather than filing a direct appeal from the trial court’s final entry of divorce and
        separation agreement, the husband erroneously seeks review of the trial court’s
        judgment through his Civ.R. 60(B) motion, which does not allow for such
        relief.

Thompson v. Dodson-Thompson, 8th Dist. No. 90814, 2008-Ohio-4710, ¶ 16.

        {¶17} In conclusion, Wife failed to demonstrate that she was entitled to relief from

judgment under Civ.R. 60(B).      Because she did not establish this prong of the GTE test, we

need not review whether she had a meritorious defense or the motion’s timeliness.        The court

acted within its discretion by denying Wife’s motion, and her sole assignment of error is

overruled.

        {¶18} Judgment affirmed.

        It is ordered that appellee recover from appellant costs herein taxed.
     The court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




JAMES J. SWEENEY, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
KENNETH A. ROCCO, J., CONCUR
