[Cite as Archer v. Dunton, 2017-Ohio-8846.]


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

DEBORAH JANE ARCHER                                  C.A. No.       28519

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
STEVEN STEWART DUNTON                                COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellee                                     CASE No.   1992-09-2167

                                DECISION AND JOURNAL ENTRY

Dated: December 6, 2017



        SCHAFER, Judge.

        {¶1}    Deborah J. Archer appeals the judgment of the Summit County Court of Common

Pleas, Domestic Relations Division, granting Steven S. Dunton’s motion for relief from

judgment. We reverse in part, and remand this matter for further proceedings.

                                                I.

        {¶2}    Ms. Archer and Mr. Dunton divorced on August 16, 1993, pursuant to the

judgment entry of divorce issued by the trial court. The divorce decree incorporated the parties’

settlement agreement and made the terms and conditions of that settlement agreement an order of

the court. Within the divorce decree, the court reserved “the right to modify such [o]rders as is

appropriate in the future.”

        {¶3}    In the separation agreement at Article 11, the parties agreed that Ms. Archer is

entitled to one-half of Mr. Dunton’s pension through the Police and Fire Pension Fund for the

State of Ohio as of the date of the divorce. At the time of the divorce, the parties recognized the
                                                 2


present value of the pension was $58,618.27, and that Ms. Archer’s current one-half interest in

said pension was $29,309.14. Article 11.2 states “[t]he jurisdiction of the Summit County Court

of Common Pleas, Domestic Relations Division, shall be preserved concerning all issues

involving division of [Mr. Dunton’s] pension.”

       {¶4}    On February 24, 2003, the court entered a division of property order, as approved

by Ms. Archer’s attorney, which indicated that it had been sent to Mr. Dunton’s attorney for

approval, but not returned. The division of property order states that the trial court “shall retain

jurisdiction to modify, supervise, or enforce the implementation of this order notwithstanding

[R.C. 3105.171(I)]”. On June 21, 2016, Mr. Dunton filed a motion for relief from judgment

pursuant to Civ.R. 60(B)(5), requesting an order vacating the division of property order and an

order permitting the submission of an amended order. Ms. Archer opposed the motion to vacate,

but filed her own motion to modify the division of property order to permit her participation in

Mr. Dunton’s Deferred Retirement Option Plan (“DROP”) benefits.

       {¶5}    The trial court issued a judgment entry on January 6, 2017, granting Mr. Dunton’s

motion to vacate under Civ.R. 60(B)(5). The court vacated the division of property order but did

not address Mr. Dunton’s request for relief in the form of an order permitting the submission of

an amended division of property order. The court did not address Ms. Archer’s argument

requesting a modified order. Ms. Archer now appeals raising two assignments of error.

                                                 II.

                                     Assignment of Error I

       The trial court erred by granting Mr. Dunton’s motion for relief from
       judgment.

       {¶6}    In her first assignment of error, Ms. Archer contends that the court erred in

granting Mr. Dunton’s request for relief under Civ.R. 60(B). We agree.
                                                 3


       {¶7}    Civ.R.60(B), in pertinent part, provides that:

       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.

To prevail on a Civ.R. 60(B) motion to vacate judgment, the movant must demonstrate: (1) a

meritorious claim: (2) entitlement to relief under one of the Civ.R. 60(B) provisions; and (3) the

timeliness of the motion. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146

(1976), paragraph two of the syllabus. All three requirements are independent and in the

conjunctive, so each must be clearly established to be entitled to relief. Id. at 151. We review a

trial court’s ruling pursuant to Civ.R. 60(B) for an abuse of discretion. J.P. v. T.H., 9th Dist.

Lorain No. 14CA010715, 2016-Ohio-243, ¶ 22. 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).

       {¶8}    Mr. Dunton filed his motion to vacate pursuant to Civ.R. 60(B)(5) for “any other

reason justifying relief from the judgment”.      In his motion, Mr. Dunton contends there is

“incongruity” between the divorce decree and two features of the division of property order.

Specifically, he argues “error” where the division of property order allows for both monthly

payments and a single cash distribution, rather than one or the other. Mr. Dunton claims that this

error only recently came to his attention. Further, he claims there is a “flaw” in the lump sum
                                                 4


amount stated in the order. Mr. Dunton sought to vacate the existing order and be permitted to

put on an “amended” division of property order in its place.

       {¶9}    In the judgment entry, the court granted the motion under Civ.R. 60(B)(5) and

stated “[t]he division of property order filed February 24, 2003 is vacated and held for naught.”

The trial court found that the division of property order inappropriately modified the provisions

of the divorce decree. The court also found that Mr. Dunton “only recently discovered that this

division of property order was in place.1” The court deemed the motion timely filed under

Civ.R. 60(B)(5). In vacating the order, the court made no pronouncement as to the entry of a

new or amended division of property order.

       {¶10} An order may be vacated under Civ.R. 60(B)(5) for “any other reason justifying

relief from the judgment.”     It is known as the catch-all provision, and it is only used in

extraordinary and unusual cases when the interest of justice necessitates it. Caruso-Ciresi, Inc. v.

Lohman, 5 Ohio St.3d 64 (1983), paragraph one of the syllabus. Civ.R. 60(B)(5) is applicable

only where a more specific provision does not apply. Strack v. Pelton, 70 Ohio St.3d 172, 174

(1994). It may not be used as a substitute when a request for relief under Civ.R. 60(B)(1)-(3) is

untimely. Caruso-Ciresi at 66.

       {¶11} Ms. Archer contends that Mr. Dunton actually presented a Civ.R. 60(B)(1) motion

because he alleges “mistake” as grounds for relief. She maintains that Mr. Dunton characterizes

it as a Civ.R. 60(B)(5) motion only because, under Civ.R. 60(B)(1), it would be untimely, having

been raised beyond the one-year limit. It is true that Mr. Dunton based his request for relief on

mistakes of fact. However, the mistakes alleged—mistakes in the court’s judgment entry—are


       1
          Mr. Dunton actually argued that he only recently became aware of the alleged flaws in
the division of property order, but did not contend that he was unaware of the existence of the
division of property order.
                                                5


not the variety intended for consideration under Civ.R. 60(B)(1). “[A] factual or legal mistake

on the part of the trial court is not the type of mistake contemplated by Civ.R. 60(B)(1).” Culgan

v. Miller, 9th Dist. Medina No. 10CA0074-M, 2011-Ohio-6194, ¶ 12. Relief from a mistake in

the trial court’s entry of judgment must be pursued via appeal, and Civ.R. 60(B) cannot be used

as a substitute for appeal. Id. at ¶ 13, citing DaimlerChrysler Fin. Servs. N. Am. LLC v. Hursell,

9th Dist. Summit No. 24815, 2011-Ohio-571, at ¶ 17. Therefore, the mistakes Mr. Dunton

alleged do not present grounds for relief under any of the provisions of Civ.R. 60(B), Civ.R.

60(B)(5) included.

       {¶12} In his brief to this Court, Mr. Dunton attempts to characterize the alleged mistakes

as “non-conformity” between the divorce decree and the division of property order, which

renders the order void ab initio. This argument differs significantly from the grounds stated in

his motion to vacate, wherein Mr. Dunton never raised the issue of a void judgment. Though the

issue of “void versus voidable” appears to have been discussed briefly in some of the parties’

subsequent filings with the trial court, the court did not address that issue. Irrespective of Mr.

Dunton’s argument, a “void” judgment entry does not entitle a party to relief under Civ.R.

60(B)(5), because “[a] judgment rendered without proper jurisdiction over the action or the

defendant is void rather than voidable. Patton v. Diemer, 35 Ohio St.3d 68, 70 (1988). If the

judgment is void, the trial court has the inherent power to vacate the judgment and a party need

not seek relief under Civ.R. 60(B). Id.

       {¶13} Mr. Dunton urges that, because a trial court is without jurisdiction to modify a

marital property decree, a contrary or conflicting division of property order is rendered void. We

acknowledge that a court lacks the jurisdiction to modify the terms of a separation agreement

incorporated into a divorce decree. Kalbaugh v. Kalbaugh, 9th Dist. Summit No. 28282, 2017-
                                                 6


Ohio-4272, ¶ 5, citing Bond v. Bond, 69 Ohio App.3d 225, 227 (9th Dist.1990). However, Mr.

Dunton’s argument confuses a court’s lack of general jurisdiction with a court’s lack of subject

matter jurisdiction. “General jurisdiction” refers to the court’s ability to exercise authority in a

particular case, while the “subject matter jurisdiction” goes to the power of the court to

adjudicate the merits of the case. Id. at ¶ 7-8, citing Pratts v. Hurley, 102 Ohio St.3d 81, 2004-

Ohio-1980, ¶ 11. Improper exercise of jurisdiction results in a voidable judgment, but lack of

subject matter jurisdiction results in a judgment that is void. Id. at ¶ 8. A voidable decision

becomes valid and binding if not challenged by a timely appeal. Id. at ¶ 9, citing Thomas v. Fick,

9th Dist. Summit No. 19595, 2000 Ohio App. LEXIS 2368, at *7 (June 7, 2000).

       {¶14} Mr. Dunton has not suggested that the trial court lacked subject matter

jurisdiction. Mr. Dunton’s position is that the court improperly exercised its jurisdiction by

entering a division of property order that impermissibly modified the terms of the divorce decree.

Even assuming the trial court did improperly exercise its jurisdiction, it would merely render the

division of property order voidable and subject to appeal, but the order would not be void, as Mr.

Dunton suggests. In any event, Mr. Dunton has not alleged facts or argument to satisfy any of

the Civ.R. 60(B) grounds. Here, he presented a motion to vacate the order approximately

thirteen years after the order was entered and after the parties began receiving retirement

benefits. Though Mr. Dunton claims that he only recently became aware of the flaws in the

order, he does not aver that he was precluded in any way from discovering these issues when the

order was entered.

       {¶15} This Court concludes that Mr. Dunton did not demonstrate any grounds to show

that he was entitled to relief under Civ.R. 60(B)(5), or any other provision of Civ.R. 60(B).

Therefore, we conclude that the trial court abused its discretion in finding that Mr. Dunton
                                                  7


satisfied Civ.R. 60(B)(5), and arbitrarily determined that he presented a timely motion.

Although the trial court unambiguously retained jurisdiction to modify the division of property

order, the trial court abused its discretion by simply vacating the division of property order.

        {¶16} Ms. Archer’s first assignment of error is sustained.

                                      Assignment of Error II

        The trial court erred by denying Ms. Archer’s motion to modify the division
        of property order.

        {¶17} In her second assignment of error, Ms. Archer contends the trial court erred when

it failed to consider her motion to modify the division of property order to allow her to

participate in the DROP benefits Mr. Dunton elected to receive. Mr. Dunton claims that Ms.

Archer actually “asks this Court to allow a modification of the Decree of Divorce to award a

share of retirement benefits” through the DROP. Ms. Archer reasons that, because the trial court

“made no mention” of the motion to modify the division of property order, it was deemed

denied. In her brief to this Court Ms. Archer contends that “when the trial court enters judgment

‘without expressly determining a pending motion, the motion impliedly is denied.’” Polivka v.

Cox, 10th Dist. Franklin No. 02AP-1364, 2003-Ohio-4371, ¶ 23 (referring to the granting of a

motion for summary judgment without first ruling on a pending motion to compel). However,

Ms. Archer’s argument is misplaced because the principle upon which she relies is inapplicable

to the facts in this case.

        {¶18} There is no indication in the record that the court considered Ms. Archer’s

motion, which would appear to be moot in light of the court’s decision to vacate the division of

property order.     Further, although the trial court’s judgment entry purportedly vacated the

division of property order, the court did not take the next step to enter an amended division of

property order. The trial court has yet to consider Ms. Archer’s motion to modify the division of
                                                 8


the property order, and this Court declines to do so in the first instance. See Catalanotto v. Byrd,

9th Dist. Summit No. 27824, 2016-Ohio-2815, ¶ 12. Moreover, this Court’s decision as to the

first assignment of error puts the entire matter back before the trial court, so the issues raised in

this second assignment of error are not ripe for our review.

       {¶19} For the reasons set forth above, Ms. Archer’s second assignment of error is

overruled.

                                                III.

       {¶20} Ms. Archer’s first assignment of error is sustained, and her second assignment of

error is overruled. The judgment of the Summit County Court of Common Pleas, Domestic

Relations Division, is reversed and the matter is remanded for proceedings consistent with this

opinion.

                                                                                Judgment reversed,
                                                                               and cause remanded.




       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

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.
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      Costs taxed to Appellee.




                                              JULIE A. SCHAFER
                                              FOR THE COURT



HENSAL, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

JANE TIMONERE, Attorney at Law, for Appellant.

J. ANTHONY TERILLA, Attorney at Law, for Appellee.
