[Cite as Hawkins v. Hawkins, 2012-Ohio-2795.]




              IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

KAREN S. HAWKINS                                       :

        Plaintiff-Appellee                             :       C.A. CASE NO.      2011 CA 55

v.                                                     :        T.C. NO.     05DR369

PHILLIP D. HAWKINS                                     :        (Civil appeal from Common
                                                                Pleas Court, Domestic Relations)
        Defendant-Appellant                            :

                                                       :

                                           ..........

                                          OPINION

                        Rendered on the         22nd       day of     June     , 2012.

                                           ..........

SAMUEL J. PETROFF, Atty. Reg. No. 0014983, One S. Limestone Street, Suite 1000,
Springfield, Ohio 45502
       Attorney for Plaintiff-Appellee

DOUGLAS W. GEYER, Atty. Reg. No. 0022738 and SAMANTHA L. BERKHOFER,
Atty. Reg. No. 0087370, 451 Upper Valley Pike, Springfield, Ohio 45504
       Attorneys for Defendant-Appellant

                                           ..........
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FROELICH, J.

               {¶ 1} Phillip Hawkins appeals from a judgment of the Clark County Court

of Common Pleas, Domestic Relations Division, which overruled his Civ.R. 60(B) motion

for relief from judgment. The judgment at issue was his decree of divorce from Karen

Hawkins, particularly the portion related to the distribution of his pension fund.

       {¶ 2}     Because the trial court did not abuse its discretion in concluding that Mr.

Hawkins’s motion for relief from judgment was untimely and failed to raise a meritorious

defense, the judgment of the trial court will be affirmed.

                                Facts and Procedural History

       {¶ 3}     Phillip and Karen Hawkins were married in 1978 and agreed to the terms of

their non-contested divorce in the fall of 2005, including that September 30, 2005 would

serve as the date of the end of their marriage. At the time of their divorce, Mr. Hawkins had

a pension plan with the Central States Southeast and Southwest Areas Pension Fund (“the

pension plan”), and the parties had been married for the entire period of Mr. Hawkins’s

employment, by which he was eligible to participate in the pension plan.

       {¶ 4}     The agreement that was documented in the divorce decree with respect to

Mr. Hawkins’s pension plan was as follows:

               Defendant, Phillip D. Hawkins is * * * a participant in the * * *

       Pension Fund, which through September 2004 [sic], has earned him 16.383

       years of contributory credit. Plaintiff, Karen S. Hawkins shall receive a fifty
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       percent (50%) interest in said pension plan, said benefit to be determined as

       follows: date of Defendant’s hire through September 30, 2005, the date of

       the final hearing herein; divided by the total years of eligibility at the time of

       defendant’s retirement; multiplied by one-half of the total monthly benefit

       payable at the time of retirement.

Mrs. Hawkins’s attorney was ordered to draft a Qualified Domestic Relations Order

(“QDRO”) to effectuate the division of the pension plan in accordance with the divorce

decree. The QDRO was filed several years later, in December 2009.

       {¶ 5}     In January 2011, Mr. Hawkins filed a Civ.R. 60(B) motion for relief from

judgment, in which he argued that the final decree of divorce did not “accurately reflect the

agreement of the parties” at the time of the divorce. He acknowledged, however, that the

QDRO “reflect[ed] the decree language which was erroneously entered;” he asserted that the

QDRO was “a perpetuation of the error contained in the final decree.”

       {¶ 6}     The trial court conducted a pre-trial conference with respect to the motion

for relief from judgment and permitted the parties to file “written response[s]” with respect

to the motion. After the parties had done so, the trial court overruled the motion for relief

from judgment, finding that the motion was untimely and that Mr. Hawkins failed to raise a

meritorious defense to the judgment.

                                            Argument

       {¶ 7}     Mr. Hawkins raises one assignment of error on appeal, which states:

               The trial court erred by failing to grant relief pursuant to Civil

       Rule 60B to correct an improper method of calculating plaintiff’s
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       retirement benefits which resulted from an improper recitation in the

       divorce decree and subsequent QDRO which fails to reflect the

       agreement set forth in the record at the final hearing in this mater and

       which continues to provide an award of retirement benefits to plaintiff

       which is excessive and which deprives plaintiff of his equitable

       retirement benefits.

       {¶ 8}     Mr. Hawkins contends that the trial court erred in overruling his motion for

relief from judgment.

                                     Standard of Review

       {¶ 9}     “To prevail on a motion brought under Civ.R. 60(B), 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.” GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47

Ohio St.2d 146, 351 N.E.2d 113 (1976), at paragraph two of the syllabus.

       {¶ 10}    The grounds for relief enumerated in Civ.R. 60(B) are “(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
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longer equitable that the judgment should have prospective application; or (5) any other

reason justifying relief from the judgment.” The rule further provides that a motion for

relief from judgment must 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.”

       {¶ 11}    A Civ.R. 60(B) motion for relief from judgment “cannot be used as a

substitute for a timely appeal or as a means to extend the time for perfecting an appeal from

the original judgment.” Key v. Mitchell, 81 Ohio St.3d 89, 91, 689 N.E.2d 548 (1998);

Harris v. Anderson, 109 Ohio St.3d 101, 2006-Ohio-1934, 846 N.E.2d 43, ¶ 9; Risner v.

Cline, 2d Dist. Champaign No. 2003-CA-24, 2004-Ohio-3786, ¶ 5..               Any claims or

arguments that could have been raised in a timely appeal are precluded from being raised in

a subsequent Civ.R. 60(B) motion, because it is the function of the appellate court to correct

legal errors committed by the trial court. Key at 91; Seitz v. Seitz, 2d Dist. Montgomery No.

23698, 2010-Ohio-3655, ¶ 7.

       {¶ 12}        Motions for relief from judgment under Civ.R. 60(B) are addressed to the

sound discretion of the trial court, and the court’s ruling will not be disturbed on appeal

absent a showing of abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d

1122 (1987); National City Mtge. Co. v. Johnson & Assoc. Financial Services, Inc., 2d Dist.

Montgomery No. 21164, 2006-Ohio-2364, ¶ 11. To constitute an abuse of discretion, the

trial court’s decision must be unreasonable, arbitrary, or unconscionable. Blakemore v.

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

                         Grounds for Civ.R. 60(B) Relief in this Case

A. Civ.R. 60(B)(1)
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       {¶ 13}    In his motion for relief from judgment and in his memorandum to the trial

court, Mr. Hawkins’s argument focused on Civ.R. 60(B)(1), which permits relief for

“mistake, inadvertence, surprise or excusable neglect.” In his memorandum and an attached

affidavit, Mr. Hawkins asserted that (1) he discovered the mistake with respect to the

division of the pension plan when he initially reviewed the divorce decree, but was assured

that the mistake would be corrected, (2) he “was presented with a faxed copy of the signature

page unattached to the divorce decree,” which he signed, believing that his signature was

necessary to effectuate the correction of the decree to reflect “what was said at the final

hearing,” and (3) he did not realize that the error had not, in fact, been corrected until Mrs.

Hawkins applied to receive her portion of the retirement benefits. The documents presented

by Mr. Hawkins with his Civ.R. 60(B) motion did not state who assured him that the

mistake would be corrected or who presented him with the unattached signature page after

the divorce decree had been signed. Mr. Hawkins argued that the divorce decree “fail[ed]

to accurately reflect the agreement of the parties,” was “erroneous,” and contained an

“uncorrected error.”

       {¶ 14}    In overruling the motion, the trial court concluded that Mr. Hawkins had

“not raised a meritorious defense to the judgment nor ha[d] he provided sufficient grounds

justifying his request. Further, his motion is not timely * * *.”

       {¶ 15}    Mr. Hawkins’s argument in the trial court was clearly based on Civ.R.

60(B)(1) and, to obtain relief on that basis, he was required to file a Civ.R. 60(B) motion

within one year from the judgment.         Although Mr. Hawkins admits that the alleged

discrepancy between the agreement of the parties and the divorce decree was apparent to him
                                                                                              7

when the decree was filed, he did not appeal from the divorce decree and did not seek relief

from the judgment for over five years. His motion for relief from judgment also was not

filed within one year of the filing of the QDRO (which itself had not been appealed).

       {¶ 16}    Mr. Hawkins inaccurately asserts that “[w]hat constitutes a timely filing is

based solely on the facts of the case and is at the discretion of the court.” Civ.R. 60(B)

expressly provides that a motion for relief from judgment made for reasons (1), (2) and (3)

must be filed “not more than one year after the judgment, order or proceeding was entered or

taken.” It is not within the trial court’s discretion to extend this time limit. Civ.R. 6(B); In

re Taaffe, 11th Dist. Trumbull No. 96-T-5616, 1997 WL 799501, * 4, fn. 1 (“Civ.R. 6(B)

prohibits a court from extending the time limit fixed by Civ.R. 60(B).”). The trial court did

not err in overruling Mr. Hawkins’s motion, because it was untimely.

       {¶ 17}    Mr. Hawkins’s brief and the exhibits attached thereto (which were not

presented in the trial court) attempt to establish that the decree and the QDRO are incorrect

and that Mrs. Hawkins is receiving pension payments far in excess of what she was entitled

to receive under the parties’ agreement. Because Mr. Hawkins did not appeal from the

divorce decree or the QDRO or seek relief from judgment within the time provided by

Civ.R. 60(B)(1), we need not discuss the alleged discrepancies between the agreement that

was read into the record and the divorce decree.

       {¶ 18}    We also reiterate that a party is not permitted to use a Civ.R. 60(B) motion

as a substitute for an appeal. Key, 81 Ohio St.3d 89, 91, 689 N.E.2d 548. Because the

alleged error was apparent to Mr. Hawkins when the decree of divorce was filed, he could

have sought relief at that time by filing an appeal.
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       {¶ 19}   The trial court did not abuse its discretion in overruling Mr. Hawkins’s

motion for relief from judgment.

B. Civ.R. 60(B)(4) and (5)

       {¶ 20}   On appeal, Mr. Hawkins raises additional bases for relief from judgment,

citing Civ.R. 60(B)(4) and (5). We will address these arguments briefly, although it is well

settled that a party may not raise a new argument for the first time on appeal. Ihenacho v.

Ohio Inst. of Photography & Technology, 2d Dist. Montgomery No. 24191,

2011-Ohio-3730, ¶ 70; Rieger v. Montgomery Cty., 2d Dist. Montgomery Nos. 23145,

23162, 2009-Ohio-4125, ¶ 18.

       {¶ 21}   Civ.R. 60(B)(4) provides for relief from a judgment where “it is no longer

equitable that the judgment should have prospective application;” it “was designed to

provide relief to those who have been prospectively subjected to circumstances which they

had no opportunity to foresee or control.” L.N.V. Corp. v. Edgar, 12th Dist. Butler No.

CA2011-10-190, 2012-Ohio-1899, ¶ 21, citing Pumper v. Pumper, 8th Dist. Cuyahoga No.

93916, 2010-Ohio-4131, ¶ 15. In this case, it is apparent that Mr. Hawkins noticed the

alleged error shortly after the judgment was filed, because he claims to have executed a new

signature page in an attempt to effectuate a correction of the alleged error. He does not

claim to have taken any other steps to ensure that the alleged error was corrected. We

cannot conclude that Mr. Hawkins had “no opportunity to foresee or control” the alleged

problem with the judgment.

       {¶ 22}   Civ.R. 60(B)(5) permits relief “for any other reason justifying relief from

the judgment.” This avenue of relief is “only to be used in an extraordinary and unusual
                                                                                              9

case when the interests of justice warrants it.” Adomeit v. Baltimore, 39 Ohio App.2d 97,

105, 316 N.E.2d 469 (8th Dist. 1974).           Mr. Hawkins argues that because, in his

understanding, the decree and QDRO do not reflect the parties’ intent in 2005, this is the

unusual case where justice warrants setting aside both the decree and the QDRO. As the

staff notes to Civ.R. 60(B)(5) comment, “[t]he grounds for invoking this catch-all provision

* * * should be substantial * * * [such as] a judgment vitiated by a fraud on the court[;] * * *

for example, the bribing of a juror, not by the adverse party, but by some third person.”

       {¶ 23}    Civ.R. 60(B)(5) will apply only when one of the specific provisions

enumerated in Civ.R. 60(B)(1)-(4) does not apply. Strack v. Pelton, 70 Ohio St.3d 172, 174,

637 N.E.2d 914 (1994); it should not be used as a substitute for any of the other more

specific provisions of Civ.R. 60(B), where the one-year time limit has expired.

Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 66, 448 N.E.2d 1365 (1983); Stairwalt v.

Stairwalt, 2d Dist. Champaign No. 2007 CA 30, 2008-Ohio-2597, ¶ 14. Because Mr.

Hawkins’s argument is clearly based on an alleged mistake in the judgment, which falls

under Civ.R. 60(B)(1), he cannot seek relief under Civ.R. 60(B)(5).

       {¶ 24}    The assignment of error is overruled.

                                         Conclusion

       {¶ 25}    The judgment of the trial court will be affirmed.

                                         ..........

GRADY, P.J. and HARSHA, J., concur.

(Hon. William H. Harsha, Fourth District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio).
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Copies mailed to:

Samuel J. Petroff
Douglas W. Geyer
Samantha L. Berkhofer
Hon. Thomas J. Capper
