      [Cite as Ouellette v. Ouellette, 2020-Ohio-705.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                      ERIE COUNTY


Darlene R. Ouellette                                     Court of Appeals No. E-19-017

      Appellant                                          Trial Court No. 2016-DR-077

v.

Johnnie E. Ouellette                                     DECISION AND JUDGMENT

      Appellee                                           Decided: February 28, 2020


                                                 *****

      Danielle C. Kulik, for appellant.

      Kyle R. Wright and Zachary E. Dusza, for appellee.


                                                 *****

      ZMUDA, P.J.

      {¶ 1} This matter is before the court on appeal from the judgment of the Erie

County Court of Common Pleas, Domestic Relations Division, granting defendant-
appellee’s motion for relief from judgment and entering a new order concerning property

distribution, based on a finding of mutual mistake. For the reasons that follow, we

reverse and remand for further proceedings.

                          I. Facts and Procedural Background

       {¶ 2} Appellant, Darlene Ouellette and appellee, Johnnie Ouellette were married

in 1994, and have three children, born August 19, 1995, September 21, 1996, and

September 10, 1999. On June 24, 2016, appellant filed a complaint for divorce.

Appellee filed a counterclaim for divorce with his answer. The matter proceeded through

discovery, with the trial court addressing various discovery disputes. Two months before

the scheduled trial date, the parties engaged in a settlement conference at the offices of

appellant’s attorney.

       {¶ 3} After a successful settlement conference, the parties entered into a stipulated

judgment entry and divorce decree, resolving all matters in controversy. The trial court

placed the agreement on the record, at hearing on April 18, 2017, with the divorce decree

journalized April 20, 2017. As agreed, appellant received the marital home, and appellee

received $110,000 from appellant’s OPERS account, ordered as follows:

              4.06(N). One Hundred and Ten Thousand Dollars ($110,000.00)

       from [appellant’s] O.P.E.R.S. account, which [appellant] shall cooperate

       with [appellee], and [appellee] shall cause to be transferred to a drop

       account in his name by a Division of Property Order (D.O.P.O.), within

       ninety (90) days or be forever barred, with costs, expenses, and taxes

       allocated to [appellee].

2.
Appellant’s attorney explained the language stricken from the entry to the trial

court, at hearing, as follows:

       There was a provision in here, which has been crossed out, and the parties

       understand that and are in agreement to that, that it was going to be within

       90 days, but we understand this is not a quick process –

       {¶ 4} After entry of the divorce decree, the parties learned that appellee could not

receive any distribution from appellant’s OPERS account until she actually retired. The

disbursement to appellee, moreover, would be in periodic payments after appellant

retired.1

       {¶ 5} Upon learning that a lump sum from appellant’s OPERS account was

impossible, counsel for appellee suggested payment of the lump sum from appellant’s

deferred compensation account, which he believed contained sufficient funds, but

appellant refused. When appellant indicated no present intention to transfer any funds to

appellee, he filed a motion for relief from judgment, pursuant to Civ.R. 60(B)(1), arguing

mutual mistake.

       {¶ 6} Appellee requested either an award against appellant’s deferred

compensation account in the amount of $110,000 in order to remedy the mistake, or an




1
 Appellant is in her mid-40s with 23 years of service, and the earliest she will be eligible
for retirement is at 55 years old. Appellee is much older, by more than a decade, and
would be around 70 years old by the time appellant reached her retirement eligibility. At
hearing on appellee’s motion for relief from judgment, appellee argued this age
difference as supporting the lump sum agreement, as appellee contemplated not surviving
until appellant’s retirement.
3.
order vacating the entire property settlement so the parties might negotiate a new

settlement, arguing the lump sum payment was a material term of the settlement

agreement. Appellant opposed the motion, arguing any award against her deferred

compensation account would be a modification to the property division without proper

reservation of jurisdiction. She also argued lack of mutual mistake, and that immediate

payment of the $110,000 was never a term of the parties’ agreement.

       {¶ 7} The trial court held an evidentiary hearing on the motion, and counsel for

appellee and the parties testified regarding their understanding of the terms of the

property settlement. Appellant and appellee each testified that they understood appellee

would receive a present lump sum payment of $110,000, mistakenly believing that

OPERS would distribute the funds from appellant’s OPERS account. Appellant testified

regarding a lump sum payment, stating:

              Well, I guess I’m learning today that he can’t have a lump sum

       award. Prior to that, I was under the impression that it was going to go into

       a drop account and that he would get it out of there and that was - - that was

       my understanding is that the 110,000 would go into a drop account and then

       he would draw money from there. If he drew it all or he drew it monthly,

       you know, I wasn’t privy to that. I just knew that he was going to get

       110,000 out of my retirement account.

She also acknowledged that the purpose of consulting with an expert was “to see if he

could get a lump sum of my retirement.”



4.
       {¶ 8} After considering the testimony and existing authority, the trial court found

either mutual mistake or unilateral mistake, preventing formation of a valid agreement

between the parties regarding property division. The trial court granted the motion for

relief, but rather than vacate the entire property award or order payment from appellant’s

deferred compensation fund, as requested, the trial court vacated only the portion of the

decree that ordered distribution from appellant’s OPERS account. Additionally, the trial

court entered an order that appellant pay appellee the lump sum of $110,000, within six

months, without specifying the source of the funds. Appellant now appeals that

judgment, asserting the following assignments of error:

              1. THE COURT ERRED IN FINDING IT HAD JURISDICTION

       TO MODIFY THE PROPERTY DIVISION

              2. THE COURT ERRED GRANTING THE MOTION FOR CIV.R.

       60(B) RELIEF.

              3. THE REMEDY THE COURT ORDERED WAS CONTRARY

       TO LAW AND THE TIMING OF DISBURSEMENT WAS AN ABUSE

       OF DISCRETION.

                                       II. Analysis

       {¶ 9} The trial court granted appellee relief from judgment, as provided under

Civ.R. 60(B)(1), based on mutual mistake. In appealing the judgment, appellant argues

the trial court was without jurisdiction to modify the property division, erred in granting




5.
Civ.R. 60(B) relief, and ordered a remedy that was both contrary to law and an abuse of

discretion.2 We address each assignment of error in turn.

                                 A. Jurisdiction to Modify

       {¶ 10} In her first assignment of error, appellant challenges the trial court’s

jurisdiction in modifying the agreement pursuant to Civ.R. 60(B). “Civ.R. 60(B) is a

mechanism whereby a party or parties may obtain relief by motion from a judgment or

order.” In re Whitman, 81 Ohio St.3d 239, 242, 690 N.E.2d 535 (1998). The Rule

strikes a balance between the finality of judgments and a perfect result “by vesting the

courts with broad, but not unlimited authority to set aside judgments.” Knapp v. Knapp,

24 Ohio St.3d 141, 145, 493 N.E.2d 1343 (1986).

       {¶ 11} Appellant first argues that the trial court failed to retain jurisdiction to

modify the property distribution, and Civ.R. 60(B) does not apply where the trial court

does not specifically reserve jurisdiction in its judgment. Appellant’s argument frames

the issue as statute supplanting application of Civ.R. 60(B) in its entirety. In support,

appellant references the change of circumstances and reservation of jurisdiction

requirements under R.C. 3105.18, as addressed in Morris v. Morris, 148 Ohio St.3d 138,

2016-Ohio-5002, 69 N.E.3d 664.



2
 Appellant also argues, for the first time on appeal, that the trial court improperly relied
on parol evidence in granting relief from judgment. Because appellant did not raise an
objection before the trial court, we deem this issue waived on appeal, and decline to
address it. See e.g. Charlesgate Commons Cond. Assn v. W. Reserve Group, 6th Dist.
Lucas No.L-14-1039, 2014-Ohio-4342, ¶ 11 (where appellant failed to object to
admissibility of evidence in ruling on summary judgment, that objection is waived on
appeal).
6.
       {¶ 12} In Morris, the Ohio Supreme Court considered whether the spousal support

statute limited relief under Civ.R. 60(B). Prior to the enactment of R.C. 3105.18(E), a

party could seek to vacate an order for periodic spousal support under Civ.R. 60(B) under

the common law. However, R.C. 3105.18(E) now provides the sole authority to vacate or

modify periodic spousal support, with the requirement that the decree contain a specific

reservation of jurisdiction. Morris at ¶ 56. The statute provides, in pertinent part:

       [T]he court that enters the decree * * * does not have jurisdiction to modify

       the amount or terms * * * unless the court determines that the

       circumstances of either party have changed and unless * * * the decree or a

       separation agreement * * * contains a provision specifically authorizing the

       court to modify the amount or terms of alimony or spousal support.” R.C.

       3105.18(E)(1)-(2).

As noted in Morris, “[i]n R.C. 3105.18(E), the General Assembly has established the

limits of a trial court’s jurisdiction to modify an award of spousal support.” Id at ¶ 57.

       {¶ 13} The dispute in this case, however, does not concern spousal support, but

instead concerns the division of marital property, governed by R.C. 3105.171. This

section of the divorce statutes does not expressly require a reservation of jurisdiction, but

instead limits modification as follows:

              (I) A division or disbursement of property or a distributive award

       made under this section is not subject to future modification by the court

       except upon the express written consent or agreement to the modification

       by both spouses.

7.
At the time the trial court entered judgment, the Ohio Supreme Court had not yet

addressed the interplay between R.C. 3105.171(I) and Civ.R. 60(B). Since that time,

however, the Court decided Walsh v. Walsh, 157 Ohio St.3d 322, 2019-Ohio-3723, 136

N.E.3d 460.3

       {¶ 14} In Walsh, the parties intended, as a term of the divorce decree, that the wife

receive direct payment from the government, as her portion of her husband’s military

pension. However, the rules governing military pensions required a marriage lasting at

least 10 years before the military could issue direct payment to the service-member’s

spouse. Walsh at ¶ 8, citing 10 U.S.C. 1408(d)(2). The parties married in 1994 and

separated after six years, but more than 13 years passed before the divorce filing. Walsh

at ¶ 2. Based on the time the couple lived together as husband and wife, the decree

recited a 6-year marriage, as permitted under R.C. 3105.171(A)(2)(b). Id. at ¶ 3.

       {¶ 15} More than a year passed, and the wife learned that direct payments were

not possible based on the recitation of a 6-year marriage in the decree. She filed a motion

for relief from the judgment pursuant to Civ.R. 60(B)(4) and (5), and the trial court

modified the decree to recite a 10-year marriage term over the husband’s objection. Id. at

¶ 12. The husband appealed the trial court’s modification, and the judgment was




3
 As the parties had fully briefed the matter prior to the Ohio Supreme Court’s decision in
Walsh, we granted them leave to file supplemental briefs to address this new authority.
Appellant filed her supplemental brief on January 21, 2020, and appellee filed his
supplemental brief on January 29, 2020.
8.
affirmed in a split decision, with one judge conferring in judgment only, and the third

judge dissenting. Id. at ¶ 13 - 15. The Supreme Court accepted the husband’s

discretionary appeal. Id. at ¶ 15.

       {¶ 16} In reversing that judgment, the Ohio Supreme Court noted the following:

              The change to the decree ordered by the domestic-relations court is

       best understood as a modification to a property division. The provisions of

       the decree at issue divided the pension by specifying the dates of the

       marriage. By changing the marriage length, the trial court modified the

       terms of the divorce decree with respect to a division of property. The

       parties did not both consent to that modification to the property division, so

       by the plain language of R.C. 3105.171(I), the court had no authority to

       order the change. Walsh at ¶ 20.

       {¶ 17} Acknowledging the decision in Morris, the Court recognized that the

statutory provision limiting modification “is a rule of substantive law” and the procedural

rule, Civ.R. 60(B), “‘cannot abridge, enlarge, or modify any substantive right’ created by

statute.” Walsh at ¶ 22, quoting Morris at ¶ 30, quoting Ohio Constitution, Article IV,

Section 5(B). “Though Morris dealt with spousal support rather than a property

distribution, the same principle apples: Civ.R. 60(B) cannot be used to alter the statutory

requirements for the modification of a decree. Because R.C. 3105.171(I) does not permit

modification absent the consent of both parties, Civ.R. 60(B) cannot provide a

workaround.” Walsh at ¶ 23.



9.
       {¶ 18} Clearly, in this case, the trial court modified the consent decree without the

consent of both parties. Similar to the court in Walsh, the trial court changed the consent

decree in order to alter the manner of payment to appellee, striking the impossible lump

sum from OPERS in favor of a cash payment by appellant to appellee, within 6 months.

While acknowledging the lack of consent, appellee argues that R.C. 3105.89 provides an

exception to the consent requirement under R.C. 3105.171(I).

       {¶ 19} R.C. 3105.89 provides, “Notwithstanding division (I) of section 3105.171

of the Revised Code: (A) The court shall retain jurisdiction to modify, supervise, or

enforce the implementation of an order described in section 3105.81 of the Revised

Code.” R.C. 3105.89(A). Appellee argues that, because the trial court’s modification

pertained to implementing the distribution from appellant’s OPERS account, R.C.

3105.89(A) applied, and the trial court acted within its authority to enforce the intent of

the parties.

       {¶ 20} We find this argument unpersuasive. R.C. 3105.89 provides a trial court

with “continuing jurisdiction over division of property orders involving public retirement

programs.” Enty v. Enty, 8th Dist. Cuyahoga No. 104167, 2017-Ohio-4177, ¶ 9, quoting

Hines v. Hines, 3d Dist. Marion No. 9-10-15, 2010-Ohio-4807, ¶ 11 (Emphasis added.).

An order under R.C. 3105.81 governs a “benefit or lump sum payment * * * from a

public retirement program to an alternate payee,” requiring a specific form created under

R.C. 3105.90 by the state retirement system.

       {¶ 21} Continuing jurisdiction over pension disbursements under R.C. 3105.89 is

separate from the property division order under R.C. 3105.171. See e.g. Walsh at ¶ 27

10.
(“Nothing in the provision that gave the court continuing jurisdiction over the QDRO

authorized it to alter the final decree of divorce.”). Significantly, the trial court in this

case struck the OPERS payment from the consent decree entirely, and substituted a non-

pension, cash payment in its place. As in Walsh, while the trial court attempted to reach

the intended result of the property division order – in this case a lump sum payment to

appellee – the payment ordered by the trial court modified the consent decree, with no

facts that permit a finding that the trial court exercised continuing jurisdiction over a

pension plan.

       {¶ 22} The trial court’s modification, in this case, did not fall within the exception

under R.C. 3105.89, and the parties clearly did not consent as required by R.C.

3105.171(I). As Civ.R. 60(B) may not be used to bypass the consent requirement of the

statute, we find appellant’s first assignment of error well-taken.

                              B. Civ.R. 60(B) Determination

       {¶ 23} While we agree with appellant that the trial court lacked jurisdiction to

modify the consent decree, we must also consider appellant’s argument that the trial court

lacked jurisdiction to consider a Civ.R. 60(B)(1) motion at all. Appellant argues that a

trial court in a domestic relations action could never consider a timely Civ.R. 60(B)(1)

motion without a reservation of jurisdiction in the decree.

       {¶ 24} There is nothing within Civ.R. 60(B) that precludes a motion for relief

from judgment in a domestic relations proceeding. See Civ.R. 60(B); Whitman, 81 Ohio

St.3d at 242, 690 N.E.2d 535. In instances in which material mistake occurred, the “lack

of mutuality undermines the integrity” of the proceeding, “and may constitute sufficient

11.
grounds to set aside the decree under Civ.R. 60(B).” Whitman at 241, citing In re

Murphy, 10 Ohio App.3d 134, 461 N.E.2d 910 (1st Dist.1983) (additional citations

omitted.)

       {¶ 25} In Ohio, divorce is “a creature of state statute.” Barth v. Barth, 113 Ohio

St.3d 27, 2007-Ohio-973, 862 N.E.2d 496, ¶ 9, citing Coleman v. Coleman, 32 Ohio

St.2d 155, 159, 291 N.E.2d 530 (1972); see also Soyk v. Soyk, 45 Ohio App.2d 319, 321,

345 N.E.2d 461 (9th Dist.1975) (“Actions for divorce * * * are purely statutory in

nature.”). As stated in Walsh, a substantive statutory provision controls over a procedural

rule, and where the statute requires consent to modify the property order, a party may not

bypass that provision with a Civ.R. 60(B) motion. The Court in Walsh, however, did not

preclude the use of Civ.R. 60(B) in domestic relations cases, nor address other types of

relief available under the Rule.

       {¶ 26} The statute applicable to property division, R.C. 3105.171, contains no

provision requiring reservation of jurisdiction to consider Civ.R. 60(B)(1) relief.

       {¶ 27} In Morris, the Supreme Court considered the limitations to Civ.R. 60(B)

relief for spousal support payments, considering the requirements under R.C. 3105.18.

Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664 at ¶ 2. The Court

specifically addressed whether vacating the order for spousal support constituted a

modification, noting:

       {¶ 28} In the realm of domestic-relations law, ‘modification order’ has a

particular meaning:



12.
       [a] post-divorce order that changes the terms of child support,

       custody, visitation, or alimony. A modification order may be agreed

       to by the parties or may be ordered by the court. The party wishing

       to modify an existing order must show a material change in

       circumstances from the time when the order sought to be modified

       was entered. Morris at ¶ 53, quoting Black’s Law Dictionary,1157

       (10th Ed.2014).

       {¶ 29} Considering the prospective, ongoing nature of spousal support, child

support, custody and visitation, an order vacating future payments or future rights to

custody or visitation unquestionably modifies such orders. See Morris at ¶ 53 (as to

spousal support, “any action taken to change the nature, amount, terms of payment, and

duration of spousal support, including vacating the award” is a modification under R.C.

3105.18(E)). In contrast, an order for division of property, under R.C. 3105.171,

concerns the present, one-time allocation of marital property to achieve an equitable

division.

       {¶ 30} R.C. 3105.171 is silent regarding a reservation of jurisdiction, with an

exception provided in a separate section for future modification for an order related to a

pension. R.C. 3105.89. Moreover, in Whitman, the Supreme Court specifically addressed

motions brought under Civ.R. 60(B)(1), (2) and (3), as “an appropriate procedural vehicle

for requesting relief,” including vacation of the decree, as a limitation that “provides




13.
permanency to any [decree] that has remained unchallenged for one year.” Whitman, 81

Ohio St.3d at 245, 690 N.E.2d 535. While the Whitman decision did reference a

reservation of jurisdiction, the statute has since been amended.

       {¶ 31} The Supreme Court in Walsh noted the Whitman decision and its reliance

on a subsequently amended statute as follows:

              In Whitman, we held that a court, pursuant to Civ.R. 60(B)(1), (2),

       and (3), could make postdecree modifications to a property division when

       the parties had incorporated a provision in the decree allowing for future

       modifications by court order. Whitman was decided prior to the amendment

       of R.C. 3105.171(I) in 2010 by Am.Sub.H.B. No. 238 that added its current

       final phrase regarding “express written consent or agreement to the

       modification by both spouses.” (Emphasis added.) Because the issue is not

       before us, we express no opinion today as to whether a reservation of

       jurisdiction would be a sufficient basis to allow a court to modify a

       property division via Civ.R. 60(B)(1), (2), or (3) under the current statutory

       scheme. Walsh, 157 Ohio St.2d 322, 2019-Ohio-3723, 136 N.E.3d 460 at ¶

       28, fn 3.

       {¶ 32} The Court in Walsh noted, without deciding, the issue of whether

“reservation of jurisdiction” language satisfied the consent requirement of R.C.

3105.171(I), permitting modification. Our case presents a wholly separate issue, whether

a court may grant relief other than modification, including vacation of the property order

or the decree. We find no prohibition, within the statute, to a court’s vacation of the

14.
entire property order or the decree, as appropriate under Civ.R. 60(B)(1), (2), or (3).

Appellee requested the trial court vacate the property division order in its entirety as

alternative relief in his motion, so that the parties might return to the bargaining table or

proceed to trial on the issue of property division.

       {¶ 33} Construing the language of R.C. 3105.171, we find no support for

appellant’s argument that the trial court lacked jurisdiction to consider relief other than

modification to the existing property order, barring a Civ.R. 60(B)(1) motion in even the

most egregious cases. In other words, appellant argues that a trial court will never have

authority to set aside – upon a timely motion – an agreed entry that resulted from mutual

mistake regarding a material term, unless all parties consent. Where, as in this case, a

party demonstrates facts that challenge the very formation of a consent decree, a motion

for relief under Civ.R. 60(B)(1) is appropriate. Whitman, 81 Ohio St.3d at 241, 690

N.E.2d 535 (without mutuality, “there was no agreement upon which [the decree] could

have been based.”). We therefore conclude that the trial court did have jurisdiction to

consider appellee’s Civ.R. 60(B)(1) motion, even if the remedy of modification was

improperly ordered.

       {¶ 34} In order to prevail on a motion for relief, “[t]he moving party must

demonstrate that he or she (1) has a meritorious defense or claim to present if the relief is

granted, (2) is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)

through (5), and (3) has made the motion within a reasonable time unless the motion is

based upon Civ.R. 60(B)(1), (2), or (3), in which case it must be made not more than one

year after the judgment.” Whitman at 242, citing GTE Automatic Elec., Inc. v. ARC

15.
Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the

syllabus. We review a determination under Civ.R. 60(B) for an abuse of discretion. Id.,

citing Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987).

       {¶ 35} An “abuse of discretion” requires a finding of more than an error of

judgment, and implies the trial court acted unreasonably, arbitrarily, or unconscionably.

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

challenges the grant of relief as an abuse of discretion considering all three prongs of the

GTE test, arguing no meritorious defense, no mistake, and an untimely motion.

       {¶ 36} Appellant first argues that the trial court erred in finding a meritorious

defense in support of appellee’s motion for relief from judgment. The trial court found

that the parties had intended to reach an equal division of marital property, which

included the immediate, lump sum payment to appellee. Such a claim, where supported

by the record, is sufficient to demonstrate a meritorious defense or claim. See e.g.

Souders v. Souders, 6th Dist. Sandusky No. S-98-017, 1998 WL 735336 (Oct. 23, 1998)

(where parties entered into consent agreement, 60(B) relief appropriate where judgment

resulted in inequitable division of property and wife argued fraud, duress, or undue

influence).

       {¶ 37} The record demonstrates the parties contemplated a present payment of

$110,000 to appellee, as a material term in the agreement for equal division of marital

property. As to the 90-day language, excised from the consent entry, appellant’s counsel

indicated “that it was going to be within 90 days, but we understand this is not a quick

process.” Appellant, moreover, acknowledged at hearing that she was to make a payment

16.
to appellee as part of the property settlement. Considering the record, the trial court’s

finding was not unreasonable, arbitrary, or unconscionable, and appellant has failed to

demonstrate any abuse of discretion.

       {¶ 38} Appellant next argues that there was no mistake, because the consent

judgment contained no language of an immediate, lump sum payment, and trial counsel’s

failure to include such “essential terms” may not serve as the basis for appellee’s claim of

mutual mistake. While the consent entry originally recited payment within 90 days, with

that language crossed out, the trial court placed the agreement on the record at the time it

accepted the consent decree, with counsel for each party testifying as to the terms. The

trial court also heard the testimony of the parties and appellee’s counsel at the evidence

hearing on appellee’s motion seeking relief.

       {¶ 39} As to the consent decree, appellant’s counsel explained, on the record, the

elimination of the 90-day language, indicating the process to release the funds could take

longer. At the hearing on appellee’s motion for relief from judgment, both parties

acknowledged that they contemplated a lump sum payment as a term of the property

settlement. Furthermore, while appellant received contrary advice prior to the settlement

conference regarding disbursements from her OPERS account, she either relied on the

expert retained for the settlement conference, or knew that appellee relied on that expert

in agreeing to the settlement, and chose to remain silent and reap the benefit from his

misunderstanding of the facts. Based on these facts, we find no abuse of discretion

regarding the trial court’s finding of mistake.



17.
       {¶ 40} Finally, appellant argues that appellee failed to file a timely motion. The

record clearly demonstrates that appellee filed his motion within the one-year limitation

of Civ.R.60(B)(1). To be timely, however, the motion must also be filed within a

reasonable time, considering the facts of the case. McBroom v. McBroom, 6th Dist.

Lucas No. L-03-1027, 2003-Ohio-5198, ¶ 33-34.

       {¶ 41} Here, appellant argues that nine months is an unreasonable amount of time

for appellee to neglect his rights, because the information pertaining to the OPERS

account was readily available on the date the parties entered the settlement and filed the

consent judgment. This argument, however, requires a finding that there was no mistake

regarding the possibility of obtaining a lump sum payment from appellant’s OPERS

account.

       {¶ 42} The trial court determined either mutual or unilateral mistake existed at the

time the parties entered into the consent decree, entitling appellee to relief from the

judgment as it pertained to the property distribution. Based on the record, there appears

no undue delay between the time appellee discovered the impossibility of a lump sum

disbursement and the time appellee filed his motion seeking relief from judgment. Based

on the facts, we find no abuse of discretion in the trial court’s determination of a timely

motion. We therefore find appellant’s second assignment of error not well-taken.

                                C. Disbursement Ordered

       {¶ 43} In her third assignment of error, appellant challenges the timing of

disbursement ordered as remedy by the trial court based on modification to the property



18.
distribution. Because we determined the trial court lacked authority to modify the order

without consent of the parties, we must necessarily find the modified terms improper.

Accordingly, appellant’s third assignment of error is well-taken.

                                     III. Conclusion

       {¶ 44} For the forgoing reasons, we affirm, in part, the judgment of the Erie

County Court of Common Pleas as to appellee’s entitlement to relief from judgment

pursuant to Civ.R. 60(B). The trial court did not err in finding a material mistake,

undermining the integrity of the parties’ agreement as to division of property under R.C.

3105.171. However, because the trial court had no authority to modify the existing

property order without consent, we reverse, in part, and remand the matter for further

proceedings pursuant to Civ.R. 60(B)(1), and direct the trial court to consider a remedy

permitted under R.C. 3105.171. The parties shall split the costs of this appeal pursuant to

App.R. 24.

                                                               Judgment affirmed, in part
                                                               and reversed, in part.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Gene A. Zmuda, P.J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE



19.
           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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