[Cite as Smith v. Smith, 2019-Ohio-129.]


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

KELLIE SMITH                                          C.A. No.   28961

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
MICHAEL SMITH                                         COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   DR-2016-11-3559

                                 DECISION AND JOURNAL ENTRY

Dated: January 16, 2019



        CARR, Judge.

        {¶1}    Michael Smith (“Husband”) appeals the judgment of the Summit County Court of

Common Pleas, Domestic Relations Division, denying his Civ.R. 60(B) motion. This Court

reverses.

                                                 I.

        {¶2}    Husband and Kellie Ann Smith (“Wife”) were married in 2012. Four children

were born of the marriage.          In November 2016, Husband and Wife filed a petition for

dissolution. The parties filed a separation agreement and a “Plan and Agreement of Parental

Rights and Responsibilities[.]” Following a hearing, in January 2017, the trial court issued a

decree of dissolution which incorporated the parties’ separation agreement and the parenting

plan. While Wife was represented by counsel, Husband was not.

        {¶3}    Husband did not appeal from the decree. However, in December 2017, Husband

filed a motion to vacate the judgment pursuant to Civ.R. 60(B)(4), (5). Husband argued that the
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separation agreement and parenting plan were unconscionable and against public policy.

Notably, both documents provided that “[t]he minor children are currently covered under

Medicaid. Wife agrees to maintain the children on Medicaid as long as they are eligible.”

Despite this, both documents failed to provide that the parties pay any cash medical support even

though Husband’s income was $132,000 per year.            See R.C. 3119.30(C), (D).       Husband

submitted an affidavit in support of his motion. Without holding a hearing, the trial court denied

the motion.

       {¶4}    Husband has appealed, raising a single assignment of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN FAILING TO GRANT RELIEF FROM A
       JUDGMENT WHICH DOES NOT ADDRESS CASH MEDICAL SUPPORT
       AND WHICH REQUIRES FATHER TO PAY IN EXCESS OF $80,000 PER
       YEAR TO MOTHER AS PROPERTY DIVISION AND LIFE-TIME SUPPORT,
       AND YET PERMITS MOTHER TO MAINTAIN THE CHILDREN ON
       MEDICAID.

       {¶5}    Husband argues in his first assignment of error that the trial court erred in denying

his Civ.R. 60(B) motion. Given the very unique circumstances of this case, we agree.

       {¶6}    “The decision to grant or deny a motion to vacate pursuant to Civ.R. 60(B) lies in

the sound discretion of the trial court and will not be disturbed absent an abuse of discretion.”

(Internal quotations and citations omitted.) Deutsche Bank Natl. Trust Co. v. Hughes, 9th Dist.

Summit No. 28454, 2018-Ohio-1041, ¶ 8. “Civ.R. 60 is a rule of procedure that allows a party to

seek relief from a judgment on a number of grounds. * * * Civ.R. 60(B)(4) permits relief if ‘it is

no longer equitable’ to enforce the judgment, and Civ.R. 60(B)(5) permits relief for ‘any other

reason justifying relief.’” Morris v. Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, ¶ 29. “To

prevail on a Civ.R. 60(B) motion for relief from judgment, the moving party must demonstrate
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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.”

Hughes at ¶ 10, quoting GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146

(1976), paragraph two of the syllabus.

       {¶7}    “Procedural rules promulgated pursuant to the Modern Courts Amendment

supersede conflicting statutes that affect procedural matters but cannot abridge, enlarge, or

modify any substantive right.” (Internal quotations and citations omitted.) Morris at ¶ 30. R.C.

3105.65(B) outlines a court’s jurisdiction following the entry of a decree of dissolution:

       The court has full power to enforce its decree and retains jurisdiction to modify all
       matters pertaining to the allocation of parental rights and responsibilities for the
       care of the children, to the designation of a residential parent and legal custodian
       of the children, to child support, to parenting time of parents with the children,
       and to visitation for persons who are not the children’s parents. The court, only in
       accordance with division (E)(2) of section 3105.18 of the Revised Code, may
       modify the amount or terms of spousal support. The court may modify the
       division of property provided in the separation agreement only upon the express
       written consent or agreement of both spouses.

R.C. 3105.65(B).

       {¶8}    Husband argued below, and on appeal, that the separation agreement and

parenting plan were unconscionable and against public policy and sought relief pursuant to

Civ.R. 60(B)(4) and (5). We conclude that Husband is entitled to relief pursuant to Civ.R.

60(B)(5).

       {¶9}    “Relief from judgment may be granted under Civ.R. 60(B)(5) for ‘any other

reason justifying relief from the judgment.’         Civ.R. 60(B)(5) is known as the ‘catch-all

provision,’ but is only used in extraordinary and unusual cases when the interest of justice
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necessitates it.” Doyle v. St. Clair, 9th Dist. Lorain No. 16CA010967, 2017-Ohio-5477, ¶ 13.

“Civ.R. 60(B)(5) only applies when one of the specific provisions enumerated in Civ.R. 60(B)(1)

to (4) does not apply.” Id. The grounds for relief should be substantial. Michael D. Tully, Co.,

L.P.A. v. Dollney, 42 Ohio App.3d 138, 141 (9th Dist.1987).            This Court has previously

concluded that a judgment that violates public policy can constitute a basis for relief under

Civ.R. 60(B)(5). See id.

Meritorious Defense

       {¶10} Here, Husband has a meritorious defense to present if the decree was vacated.

The decree, which incorporated the parties’ separation agreement and parenting plan, is

unquestionably grossly inequitable, and was clearly designed to take advantage of the fact that

Husband was unrepresented. See Souders v. Souders, 6th Dist. Sandusky No. S-98-017, 1998

WL 735336, *4 (Oct. 23, 1998) (concluding inequity in the property division constituted a

meritorious defense). While the decree does not technically provide for spousal support, and

deviates the child support award to zero, it nonetheless requires Husband to pay Wife substantial

sums of money, often monthly, as part of the property division. Some of those payments appear

to have no termination date, despite the fact that the parties were only married for five years, are

both young, and there appears to be limited equity and assets in the marital estate. While both

the separation agreement and the parenting plan state that the agreement is conditioned on Wife

“never having had a job as an adult and being unable to make meaningful income” and

Husband’s income of approximately $132,000, there is nothing that explains why Wife would be

“unable to make meaningful income[.]” In addition, Husband is responsible for shouldering all

of the marital debt.
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        {¶11} In order to fully demonstrate the lack of equity in the decree, we will take a

moment to outline some of what Husband is responsible for paying. Husband is responsible for

paying for the four children’s tuition at private school through high school, and if Wife opts to

home school any or all of the children, the money that would have gone to tuition is to be given

to Wife to put in a savings account. Husband is also responsible for all of the children’s

expenses, including those for extracurricular activities, clothing, and school items, as well as all

out of pocket medical, dental, and vision costs. Husband has to give Wife money for the

children’s Christmas presents, is required to give Wife $800 a month for deposit into the

children’s college funds, and $1500 per month, until the youngest child is emancipated, for food,

toiletries, and essentials.

        {¶12} In addition, under the decree, Husband is required to pay all expenses in relation

to the home including the mortgage, taxes, insurance, repairs, upkeep, yard maintenance, and

pool expenses. If the parties were to sell the home, Husband is still required to pay Wife

approximately $2,000 per month so that Wife can obtain new housing. Like several other

provisions, these housing related provisions have no end date. Moreover, Husband is responsible

for paying for all home utilities and a cleaning person. Husband must pay Wife’s car payment

until the lease ends. When the lease ends, Husband agrees to replace Wife’s car and bear the

costs. Husband is to bear all costs associated with car. Further, Husband is to give Wife $200

per month in cash to contribute to her IRA until the youngest child is emancipated, is to maintain

Wife as the beneficiary on his two million dollar life insurance policy, and pay for all of Wife’s

attorney fees for the then current litigation and the fees “for any subsequent proceeding” related

to the separation agreement or parenting plan.
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       {¶13} Moreover, aside from the obvious inequity in the decree, the decree omits any

provision requiring either of the parties to pay cash medical support, despite the fact that

Husband had an income of $132,000 and the children were on Medicaid. See R.C. 3119.30(C),

(D). Wife herself acknowledges this omission on appeal.

       {¶14} Based on all of the foregoing, we conclude that Husband has a meritorious

defense if the decree were to be vacated.

Husband is entitled to relief under Civ.R. 60(B)(5)

       {¶15} As noted above, both the separation agreement and the parenting plan contain a

clause stating that: “The minor children are currently covered under Medicaid. Wife agrees to

maintain the children on Medicaid for as long as they are eligible.”         When this clause is

considered along with the rest of the decree, and in light of the omission of the provision related

to cash medical support, we conclude that the clause violates public policy and also encourages

possibly illegal conduct. See R.C. 2913.401(B)(1) (“No person shall knowingly[,] * * * in an

application for enrollment in the medicaid program or in a document that requires a disclosure of

assets for the purpose of determining eligibility for the medicaid program[,] [m]ake or cause to

be made a false or misleading statement[.]”). While perhaps it is not against public policy to

maintain children on Medicaid if they are eligible, here the entirety of the separation agreement

and parenting plan were clearly set up to ensure that Wife would have little to no taxable income

and thus be able to keep the children on Medicaid. None of the payments being made to Wife

are structured as child support or spousal support, and instead, the vast majority are categorized

as part of the property division. See Stainbrook v. Stainbrook, 2d Dist. Montgomery No. 11654,

1989 WL 159194, *2 (Dec. 12, 1989) (“Appellant has valid reasons to maintain the distinction

between sustenance/support and property division.        The former is taxable income and it
                                                  7


terminates at the obligor’s death. The latter is not taxable income and it is a claim upon the

obligor’s estate at his death.”). Moreover, because of the absence of a provision requiring the

payment of cash medical support, neither party has to defray the cost the government would

expend in providing Medicaid for the children. A provision encouraging parties to maintain their

children on Medicaid when the children should not be eligible for Medicaid given the financial

circumstances of the parties is undoubtedly against public policy.               We determine the

circumstances before us are extraordinary and Husband has presented substantial grounds

justifying relief under Civ.R. 60(B)(5). See Doyle, 2017-Ohio-5477, at ¶ 13; Michael D. Tully,

Co., L.P.A., 42 Ohio App.3d at 141.

       {¶16} Further, while the Supreme Court has concluded that a procedural rule such as

Civ.R. 60(B) cannot expand the substantive rights provided by a statute, we conclude that

utilizing Civ.R. 60(B) under these circumstances would not expand the rights provided by the

substantive statute, R.C. 3105.65(B). See Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, at ¶ 32.

R.C. 3105.65(B) provides the trial court with jurisdiction to modify “matters pertaining to the

allocation of parental rights and responsibilities for the care of the children” or “child support[.]”

R.C. 3105.65(B).     Notably, even the parenting plan acknowledged that the trial court had

continuing jurisdiction “regarding matters relating to the[] minor children” and the “matters dealt

with” in the parenting plan.

Reasonable Time

       {¶17} “[T]he issue of what constitutes reasonable time for filing the motion under

Civ.R. 60(B) depends upon the facts of the case[.]” (Internal quotations and citations omitted.)

Fairbanks Capital Corp. v. Heirs at Law, 9th Dist. Summit No. 22733, 2005-Ohio-6459, ¶ 11.
                                                 8


Nonetheless, “[a] movant must offer some operative facts or evidential material demonstrating

the timeliness of his or her motion.” (Internal quotations and citations omitted.) Id.

       {¶18} Considering the unique circumstances of the matter before us, we conclude that

Husband filed his motion in a reasonable time. The decree of dissolution was journalized

January 17, 2017, and Husband filed his motion to vacate less than a year later, on December 11,

2017. In addition, Husband averred that “Wife’s conduct has exhausted [his] income through

th[e] past year, making it impossible for [him] to file th[e] motion before this time.” Husband

averred that he believed that the payments would be subject to modification given that the

separation agreement and parenting plan indicated that the agreements were based upon Husband

earning $132,000 and Wife never having had a job as an adult. Husband further averred that he

only came to understand that Wife would not be willing to modify the agreements “recently.”

We note that Husband was unrepresented at the time the decree was issued.

Conclusion

       {¶19} Given the foregoing, we can only conclude that the trial court abused its

discretion in denying Husband’s Civ.R. 60(B) motion. Moreover, we conclude that merely

vacating the problematic clause concerning Medicaid in this case would not provide justice to

either party. It is clear that the entire agreement was drafted in such a way as to increase the

likelihood that the children would be eligible for Medicaid. Thus, this Court orders the trial

court to vacate the parenting plan and separation agreement and hold further proceedings as

necessary. See Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, at ¶ 58.

       {¶20} We pause to note that we see this case as an anomaly and do not believe that this

disposition will lead to a flood of litigation. The trial court is ordered to vacate the parenting

plan and separation agreement due to the provision in the separation agreement and parenting
                                                  9


plan which violates public policy. Such a condition is thankfully rare. And while there is

language in Morris that suggests that Civ.R. 60(B)(4) and (5) are not available to a party seeking

relief from a decree of dissolution, Morris did not involve issues related to parental rights and

responsibilities; issues which the General Assembly have given trial courts continuing

jurisdiction over. See Morris at ¶ 63; R.C. 3105.65(B). In light of the circumstances before us,

we cannot say that Morris bars relief in this matter.

       {¶21} Husband’s assignment of error is sustained.

                                                 III.

       {¶22} Husband’s assignment of error is sustained. The judgment of the Summit County

Court of Common Pleas, Domestic Relations Division, is reversed and this matter is remanded

for proceedings consistent with this decision.

                                                                              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.




                                               DONNA J. CARR
                                               FOR THE COURT



TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

LESLIE S. GRASKE, Attorney at Law, for Appellant.

CORINNE HOOVER SIX, Attorney at Law, for Appellee.
