[Cite as Harper v. Harper, 2011-Ohio-5276.]


               Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 96454




                                   SUSAN M. HARPER

                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  DAVID W. HARPER
                                                    DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                     Civil Appeal from the
                               Cuyahoga County Common Pleas Court
                                   Domestic Relations Court
                                    Case No. CP D-325503

        BEFORE: E. Gallagher, J., S. Gallagher, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                   October 13, 2011
                                         2


ATTORNEY FOR APPELLANT

Andrew J. Simon
Freedom Square II, Suite 380
6000 Freedom Square Drive
Independence, Ohio 44131


ATTORNEYS FOR APPELLEE

Margaret E. Stanard
Cheryl Wiltshire
Stanard & Corsi, Co., L.P.A.
1370 Ontario Street
Suite 748
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, J.:

      {¶ 1} Appellant David W. Harper appeals from an order of the Cuyahoga County

Court of Common Pleas, Domestic Relations Division, denying his motion for relief

from judgment under Civ.R. 60(B)(4). For the following reasons we affirm.

      {¶ 2} On March 19, 2009, appellee Susan M. Harper filed a complaint for

divorce, which appellant answered and asserted a counterclaim. The case proceeded to

trial on January 11, 2010.     After four days of testimony, the parties reached an

agreement resolving the parties’ dispute and disposing of all pending issues.      The

agreement was reduced to writing in the form of a separation agreement. The trial court
                                           3

noted that each party had reviewed the agreement independently, and with counsel, and

that each party understood the terms contained within the agreement. The separation

agreement explicitly stated that the parties’ agreement as to spousal support “shall not be

modifiable by a Court of competent jurisdiction except to the extent necessary to

effectuate the parties’ intentions by issuance of wage orders, bank attachments, etc. * *

*.” In regards to the entire separation agreement, clause 12 provides that, “[e]xcept as

otherwise expressly provided herein, this Agreement shall not be altered or modified,

unless it be done in writing and signed by both parties.” The trial court found the terms

of the separation agreement to be fair, just, and equitable and incorporated the agreement

into its February 17, 2010 judgment entry of divorce.

       {¶ 3} Ten months later, appellant filed a Civ.R. 60(B) motion for relief from the

judgment seeking an order from the trial court vacating the separation agreement.

Appellant’s attached affidavit explained that his sole source of income was his business,

Harper Engineering, Inc., and that the financial institution from which the business

derives its line of credit recently indicated that, absent a “drastic improvement,” the

business’s line of credit would not be renewed. Appellant avered that his efforts to seek

an alternative line of credit were unsuccessful. Appellant stated that, “without a line of

credit from which to operate, I am concerned and afraid that Harper Engineering, Inc.

will soon become not viable.” Appellant concluded that he would not be able to pay his

spousal support obligations and property division payments.              Based on these
                                           4

circumstances, appellant argued that the prospective application of the separation

agreement was no longer equitable.

       {¶ 4} On January 27, 2011, the trial court denied appellant’s Civ.R. 60(B)

motion, citing the Ohio Supreme Court’s decision in Knapp v. Knapp (1986), 24 Ohio

St.3d 141, 493 N.E.2d 1353, and this court’s holding in Pumper v. Pumper, Cuyahoga

App. No. 93916, 2010-Ohio-4131. Appellant brought the present appeal asserting that

the trial court erred in denying his Civ.R. 60(B)(4) motion and further erred by ruling on

the motion without holding an evidentiary hearing.

       {¶ 5} We begin our analysis by noting that the General Assembly has limited the

jurisdiction of the courts to modify spousal support payments, which were agreed to

pursuant to a separation agreement, that is incorporated into a divorce decree. This

Court has previously stated that, “[t]he appropriate remedy, when there is a change in a

party’s circumstances after a divorce decree, is to file a motion to modify under R.C.

3105.18(E).” Hirsh v. Hirsh (Nov. 22, 1995), Cuyahoga App. No. 67977, at 4. “R.C.

3105.18 governs a trial court’s authority to terminate or modify a spousal support order.

In order for a trial court to modify the amount or terms of spousal support, the court must

have jurisdiction to make the modification as provided in R.C. 3105.18(E).” Calabrese

v. Calabrese, Cuyahoga App. No. 88520, 2007-Ohio-2760, at ¶19. R.C. 3105.18(E)

provides in pertinent part:

       “(E) If a continuing order for periodic payments of money as alimony is entered in
                                            5

       a divorce or dissolution of marriage action that is determined on or after May 2,
       1986, and before January 1, 1991, or if a continuing order for periodic payments
       of money as spousal support is entered in a divorce or dissolution of marriage
       action that is determined on or after January 1, 1991, the court that enters the
       decree of divorce or dissolution of marriage does not have jurisdiction to modify
       the amount or terms of the alimony or spousal support unless the court determines
       that the circumstances of either party have changed and unless one of the
       following applies:

       In the case of a divorce, the decree or a separation agreement of the parties to the
       divorce that is incorporated into the decree contains a provision specifically
       authorizing the court to modify the amount or terms of alimony or spousal
       support.”

       {¶ 6} In the case sub judice, the parties failed to provide the court with

continuing jurisdiction to modify the terms of the agreed-upon spousal support. In

fact, the term the parties agreed upon removed any confusion from the matter,

specifically providing that the spousal support terms are not modifiable by the trial court.

 As appellant is precluded from seeking a modification of the spousal support due to the

specific language of the agreement and the trial court’s lack of jurisdiction, we examine

whether appellant can circumvent this limitation by way of a Rule 60(B) motion for

relief from judgment.

       {¶ 7} To prevail on a Civ.R. 60(B) motion for relief from judgment, the movant

must submit operative facts demonstrating that (1) the motion is timely made; (2) the

party is entitled to relief under Civ.R. 60(B)(1)-(5); and (3) the party has a meritorious

claim or defense. See GTE Auto. Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio

St.2d 146, 351 N.E.2d 113. The trial court has discretion in determining whether the
                                           6

motion will be granted, and in the absence of a clear showing of abuse of discretion, the

decision of the trial court will not be reversed. Rose Chevrolet, Inc. v. Adams (1988), 36

Ohio St.3d 17, 20, 520 N.E.2d 564.

      {¶ 8} Appellant argues that, due to his changed financial circumstances, he is

entitled to relief from judgment under Civ.R. 60(B)(4). The rule provides, “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: (4) * * * it is no

longer equitable that the judgment should have prospective application.”

      {¶ 9} In Knapp v. Knapp, 24 Ohio St.3d 141, 493 N.E.2d 1353, the Ohio

Supreme Court held that the “* * * it is no longer equitable * * *” clause of Civ.R.

60(B)(4) will not relieve a litigant from the consequences of his voluntary, deliberate

choice to enter into a separation agreement in a dissolution of marriage proceeding. Id.

at syllabus. In Knapp, the former husband’s financial condition had diminished and he

was unable to afford the alimony payments upon which the parties had agreed. As in

the present case, the former husband in Knapp was precluded from seeking a court

modification of his agreed upon alimony due to a non-modification provision in the

parties’ agreement and the General Assembly’s restriction on the courts’ jurisdiction to

modify such agreements. Despite this impediment, the former husband argued that

under Civ.R. 60(B)(4), it was no longer equitable to give the alimony provision of the

settlement agreement prospective enforcement. The Ohio Supreme Court rejected his
                                            7

argument, stating,    “It would be inequitable not to give the alimony provision

prospective enforcement. It is abundantly clear from the record that [the former husband]

made a voluntary, deliberate choice to enter into the settlement agreement. * * * It would

be unfair to relieve either party from the consequences of these choices simply because

hindsight indicates they may not have been wise choices.” Id. at 145.          The Ohio

Supreme Court concluded that the former husband had an opportunity to control the

terms of the agreement and that in light of the General Assembly’s limitation of the

jurisdiction of the courts to modify periodic alimony payments, Civ.R. 60(B)(4) relief

was unavailable to circumvent the restriction. Id. at 146.

       {¶ 10} In Lefevre v. Lefevre (Jan. 25, 1990), Cuyahoga App. No. 56470, this

Court found that the holding in Knapp, curtailing the use of Civ.R. 60(B)(4) to relieve a

party from the consequences of his voluntary, deliberate choice to enter into a separation

agreement, extended to divorces as well as dissolutions. Id. at 4. We stated that, “[t]he

fact that the case herein involves a divorce proceeding as opposed to a dissolution as in

Knapp is immaterial since the Separation Agreement incorporated into the divorce

decree was voluntarily entered into between the parties as was the separation agreement

in Knapp.” Id. at 4; see, also, Williams v. Williams (Feb. 28, 1991), Cuyahoga App. No.

60118, (Entitlement to relief pursuant to Civ.R. 60(B)(4) cannot be established where the

movant seeks to be relieved of the consequences of his voluntary, deliberate choice to

enter into a separation agreement.)
                                            8

       {¶ 11} We reiterated this holding in Pumper v. Pumper, Cuyahoga App. No.

93916, 2010-Ohio-4131. Citing Knapp, we noted that, “when a party voluntarily enters

into a separation agreement, the party is bound by the terms of that agreement, even if

the party’s financial circumstances change.” Id. at ¶15. “Indeed, a change in a person’s

financial situation is always a possibility; therefore, ‘it is considered a foreseeable event

for purposes of Civ.R. 60(B)(4) even if there was no immediate reason to believe the

change was about to occur when the judgment was issued.’” Id., quoting Barnes v.

Barnes, 5th Dist. No. 2003CA00383, 2005-Ohio-544.             Consistent with Knapp and

Lefevre, we concluded that, “a party cannot rely on Civ.R. 60(B)(4) to vacate a

settlement agreement due to a change in finances when the party should have considered

such a change in negotiating the settlement.” Id. at ¶20.

       {¶ 12} As R.C. 3105.18(E) recognizes, the parties to a separation agreement are

free to include within the agreement provisions allowing for the trial court to alter the

spousal support terms upon a change in circumstances.            As changes in a party’s

financial circumstances are foreseeable, we noted in Pumper that the parties “should

have considered this point in negotiating the terms of the separation agreement. The fact

that the [former husband] failed to ensure that the agreement covered this possibility is

not a valid reason for concluding that it would be inequitable to continue to enforce the

provisions of the agreement.” Id. at ¶17, quoting Barnes v. Barnes, 5th Dist. No.

2003CA00383, 2005-Ohio-544.
                                            9

       {¶ 13} In the present case, appellant was in the best position to evaluate the

potential risks to his income and financial stability. The parties were free to negotiate

what conditions and changes in circumstances would allow the trial court to modify their

separation agreement. Instead of providing for modification under such circumstances,

the parties specifically agreed that the agreement would not be modifiable. Appellant

cannot now rely upon Civ.R. 60(B)(4) to vacate his voluntary, deliberate choice to enter

into a separation agreement specifically barring court modification simply because

hindsight reveals he may not have made a wise choice.

       {¶ 14} Under the present circumstances, the trial court did not abuse its discretion

in refusing to vacate the terms of appellant’s separation agreement under Civ.R.

60(B)(4). Appellant’s first assignment of error is overruled.

       {¶ 15} In his second assignment of error appellant argues that the trial court erred

in denying his Civ.R. 60(B) motion without holding an evidentiary hearing.              We

rejected this argument in Pumper. As appellant cannot rely upon Civ.R. 60(B) for relief

in the present instance, the trial court was not required to hold a hearing prior to denying

his motion. See Pumper, at ¶22 (holding that an evidentiary hearing was not required

“when the motion and attached evidentiary material do not contain allegations of

operative facts that would warrant relief under Civ.R. 60(B)”).

       {¶ 16} Appellant’s second assignment of error is overruled.

       {¶ 17} The judgment of the trial court is affirmed.
                                          10

      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 lower 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.



EILEEN A. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
