[Cite as Kisielius v. Kisielius, 2009-Ohio-4624.]




                        IN THE COURT OF APPEALS OF OHIO
                            THIRD APPELLATE DISTRICT
                                 SHELBY COUNTY




JANINA SVIOKLINE KISIELIUS,
        PLAINTIFF-APPELLEE,
        v.                                          CASE NO. 17-09-05
VYTAS KISIELIUS, EXECUTOR, ET AL.,
        DEFENDANTS/THIRD PARTY
        PLAINTIFFS-APPELLANTS,
        v.                                          OPINION
EDWARD D. JONES & COMPANY,
        THIRD PARTY DEFENDANT-APPELLEE.




JANINA SVIOKLINE KISIELIUS,
        PLAINTIFF-APPELLEE,
        v.                                          CASE NO. 17-09-11
VYTAS KISIELIUS, EXECUTOR, ET AL.,
        DEFENDANTS/THIRD PARTY
        PLAINTIFFS-APPELLANTS,
        v.                                          OPINION
EDWARD D. JONES & COMPANY,
        THIRD PARTY DEFENDANT-APPELLEE.
Case No. 17-09-05, 17-09-11




              Appeal from Shelby County Common Pleas Court
                Trial Court Nos. 07CV352 and 07CV000352

                              Judgments Affirmed

                    Date of Decision:     September 8, 2009




APPEARANCES:

      Keith M. Schnelle for Appellants

      James L. Thieman for Appellee




SHAW, J.

      {¶1} Appellant Vytas Kisielius (“Vytas”), acting as the executor of the

estate of Alfonsas Kisielius (“Alfonsas”) and as the successor trustee of the

Alfonsas Kisielius Revocable Trust (“the trust”) appeals from the August 21, 2008

Decision of the Court of Common Pleas of Shelby County, Ohio granting

summary judgment in favor of Appellee Janina Sviokline Kisielius (“Janina”) and

the April 3, 2009 Decision of the Court of Common Pleas of Shelby County, Ohio

denying Vytas’ Civil Rule 60(B) motion for relief from judgment.




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      {¶2} Alfonsas and Janina were married on July 23, 1999.             Prior to

marrying, Janina and Alfonsas entered into an Antenuptial Agreement dated July

16, 1999. The antenuptial agreement provided, in pertinent part, as follows:

      Upon the death of Alfonsas, if he shall die before Janina, she
      shall be paid the sum of ONE HUNDRED THOUSAND
      DOLLARS ($100,000) from probate or non-probate assets.

      Janina shall have the right to use and occupy any primary and
      secondary residences of Alfonsas for ten (10) years from his date
      of death. Janina shall not be obligated to pay rent but shall pay
      the taxes, insurance, maintenance, utilities and up-keep of such
      residence.

      ***

      Janina will make no additional claims on the probate or non-
      probate assets of Alfonsas including but not limited to assets in
      his revocable living trust dated November 30, 1998, individual
      IRA accounts, individual brokerage accounts and individual
      annuities.

      ***

      The Parties may from time to time during the marriage
      establish common incidents of ownership of property, real,
      personal and mixed, and make gifts to each other and acquire
      property together, in joint names, with right of survivorship or
      as tenants in common, none of which shall be considered a
      waiver or amendment of the terms of this Agreement, except to
      the extent that either Party should modify his or her Last Will
      and Testament. However, to the extent that either party should
      modify his or her Last Will and Testament, if it varies from the
      terms of this Agreement so as to give more to the surviving
      spouse than the first-dying spouse is obligated to make by this
      Antenuptial Agreement, such modification shall constitute a
      partial waiver, limited to the specific assets mentioned in a Last
      Will and Testament hereafter executed by Alfonsas or Janina.


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      {¶3} It appears, although not expressly clear from the record, that during

the course of the marriage Alfonsas and Janina resided predominately in a Florida

condominium. It also appears that although Alfonsas owned the condominium in

Sydney, Ohio, the couple did not spend much time at the Sydney condominium.

      {¶4} During the course of the marriage, several financial transactions

occurred that are pertinent to the case at hand. Alfonsas took a $100,000 loan

from the trust. It appears from the record that this loan could have been taken to

make improvements on the Florida property.       However, no writing was ever

created expressing the purpose of the loan and no loan documents were ever

signed delineating terms of repayment. Additionally, it appears that the loan was

taken from the trust solely by Alfonsas, as Janina had no control over the trust.

Moreover, Janina did not sign any papers evidencing a loan.

      {¶5} Also during the course of the marriage, on January 17, 2001,

Alfonsas and Janina opened a joint Money Market Savings Account at the Bank of

America.

      {¶6} Janina and Alfonsas remained married until Alfonsas’ death on

January 31, 2007. Alfonsas died testate. Alfonsas had executed a Last Will and

Testament (“the will”), dated November 30, 1998 with several subsequent

codicils. Alfonsas had also created The Alfonsas Kisielius Revocable Trust (“the

trust”) on November 30, 1998 which had several subsequent amendments.


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       {¶7} The first codicil to Alfonsas’ will was executed on September 6,

2000. The first codicil recognized Alfonsas’ marriage to Janina and recognized

the $100,000 payment in the antenuptial agreement, which was to be paid by the

estate or the trust. The first amendment to the trust also recognized the marriage

and the $100,000 payment which was specified to come from either the probate

estate or the trust.

       {¶8} On June 8, 2001 Alfonsas executed a second amendment to the trust,

which directed the Florida condominium, along with all furnishings and

housegoods, be transferred to Janina upon his death.

       {¶9} Alfonsas made a second codicil to his will on September 28, 2004.

The second codicil recognized the transfer of the Florida condominium to Janina,

and named Janina as the alternate executor of the will, should Vytas be unable or

unwilling to act as executor.

       {¶10} After Alfonsas’ death, Vytas, his son, opened Alfonsas’ estate in the

Probate Court of Shelby County, Ohio on March 8, 2007. Vytas was appointed as

the executor of the estate on March 9, 2007.

       {¶11} It appears from the record before this court that in July of 2007

Janina filed a claim against the estate for $100,000, which was rejected in August

of 2007.




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       {¶12} On October 11, 2007 Janina filed a complaint for declaratory

judgment and money damages claiming that she was entitled to receive $100,000

pursuant to the terms of the antenuptial agreement and claiming that she was

entitled to the Bank of American Money Market Savings Account, which vested in

her name on Alfonsas’ death, and according to Janina, should not be considered an

asset of Alfonsas’ estate.

       {¶13} On November 20, 2007 Vytas filed an answer and counterclaim in

his capacity as executor of Alfonsas’ estate and a third-party complaint for

declaratory judgment in his capacity as executor and also in his capacity as trustee.

In his counterclaim, Vytas claimed that Janina committed improper endorsement

and conversion and therefore was liable to the estate for $80,000. In the third-

party complaint Vytas requested that Janina be required to return the $80,000 she

deposited into the joint account, that the court enter declaratory judgment stating

that Janina had no interest in the Sydney condominium and that the Florida

condominium would be transferred to her subject to the balance due on the home

loan, that the court order that the IRA not be disbursed until the trial court ruled on

the merits of the third-party claim, that the court enter declaratory judgment that

Janina was not entitled to any of the estate of Alfonsas or Alfonsas’ IRA, and that

the court enter declaratory judgment stating that Janina was only entitled to




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$100,000 pursuant to the terms of the antenuptial agreement. Janina filed an

answer and reply on December 18, 2007.

      {¶14} On April 23, 2008 Janina filed a motion for summary judgment.

Vytas filed a memorandum in opposition on May 13, 2008 and Janina filed a reply

memorandum on May 20, 2008. An oral argument was held on the motion for

summary judgment on July 22, 2008. Both Vytas and Janina filed briefs after the

hearing.

      {¶15} On August 21, 2008 the trial court granted summary judgment in

favor of Janina. On August 27, 2008 Janina filed a motion for prejudgment

interest. Vytas filed a motion in opposition on September 10, 2008.

      {¶16} On February 13, 2009 Vytas filed a motion for relief from judgment

pursuant to Civ. R. 60(B). Janina filed her motion in opposition on February 26,

2009. On April 3, 2009 the trial court entered a ruling denying Vytas’ Civ. R.

60(B) motion.

      {¶17} Vytas now appeals, asserting six assignments of error.

                  ASSIGNMENT OF ERROR I
      THE TRIAL COURT ERRED WHEN IT REQUESTED,
      ALLOWED AND CONSIDERED ADDITIONAL EVIDENCE
      AFTER THE FILING OF THE MOTION FOR SUMMARY
      JUDGMENT AND THEN OVERRULED VYTAS’S MOTION
      TO DISREGARD ADDITIONAL EVIDENCE.

                 ASSIGNMENT OF ERROR II
      THE TRIAL COURT ERRED WHEN IT DETERMINED
      THERE WAS NO GENUINE ISSUE OF MATERIAL FACT


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       ABOUT WHO OWNED THE PROCEEDS OF THE SAVINGS
       ACCOUNT IN FLORIDA AND THAT IT WAS A JOINT
       ACCOUNT WITH RIGHTS OF SURVIVORSHIP.

                  ASSIGNMENT OF ERROR III
       THE TRIAL COURT ERRED WHEN IT DETERMINED VIA
       A MOTION FOR SUMMARY JUDGMENT THAT DESPITE
       THE THE [SIC] IMPROPER ENDORSEMENT AND
       CONVERSION BY JANINA OF THE IRA CHECK, IT WAS
       PROPERLY PAYABLE TO HER AND WAS NOT AN
       OFFSET AGAINST THE ANTENUPTIAL AGREEMENT.

                  ASSIGNMENT OF ERROR IV
       THE TRIAL COURT ERRED AS A MATTER OF LAW
       WHEN IT DETERMINED THAT THE $80,000 IRA CHECK
       SHOULD NOT BE AN OFFSET FROM THE $100,000 GIFT
       TO JANINA DESCRIBED IN THE ANTENUPTIAL
       AGREEMENT.

                   ASSIGNMENT OF ERROR V
       THE TRIAL COURT ERRED WHEN IT DETERMINED THE
       FLORIDA    CONDOMINIUM     SHOULD   NOT   BE
       TRANSFERRED TO JANINA SUBJECT TO THE HOME
       IMPROVEMENT LOAN WHEN GENUINE ISSUES OF
       FACT STILL EXISTED.

                      ASSIGNMENT OF ERROR VI
       THE TRIAL COURT ERRED WHEN IT OVERRULED THE
       CIV. R. 60(B) MOTION OF APPELLANT.

       {¶18} For ease of discussion, we elect to address Vytas’ assignments of

error out of order.

                             First Assignment of Error

       {¶19} In his first assignment of error, Vytas argues that the trial court erred

when it considered additional evidence in ruling on Janina’s motion for summary



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judgment. Specifically, Vytas argues that the trial court erred in overruling his

motion to disregard additional evidence, filed on July 15, 2008. In his motion and

on appeal, Vytas specifically argues that the trial court erred by allowing Janina to

file a copy of the signature card of the Bank of America joint account and copies

of the warranty deeds to the Florida and Sydney condominiums.

       {¶20} As an initial matter, we note that Civil R. 56 provides for

supplementation of the record, as follows:

      (E) Form of affidavits; further testimony; defense required

      Supporting and opposing affidavits shall be made on personal
      knowledge, shall set forth such facts as would be admissible in
      evidence, and shall show affirmatively that the affiant is
      competent to testify to the matters stated in the affidavit. Sworn
      or certified copies of all papers or parts of papers referred to in
      an affidavit shall be attached to or served with the affidavit. The
      court may permit affidavits to be supplemented or opposed by
      depositions or by further affidavits. When a motion for summary
      judgment is made and supported as provided in this rule, an
      adverse party may not rest upon the mere allegations or denials
      of the party's pleadings, but the party's response, by affidavit or
      as otherwise provided in this rule, must set forth specific facts
      showing that there is a genuine issue for trial. If the party does
      not so respond, summary judgment, if appropriate, shall be
      entered against the party.

(emphasis added).

       {¶21} As this Court has previously recognized, supplemental evidence is a

permissible tool to support a motion for summary judgment. See, Feichtner v.

Kalmbach Feeds, Inc., 3rd Dist. No. 16-04-09, 2004-Ohio-6048 at ¶11. Moreover,



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this Court notes that the Bank of America Signature Card had already been

submitted to the trial court as part of Janina’s original complaint. The additional

submission was only to put on record a copy that was more legible.

       {¶22} Additionally, with regard to the condominiums, ownership of the

condominiums was never at issue and in fact, in his third-party complaint, Vytas

asserted that ownership of the condominiums was held by the trust, which was

evidenced by the deeds. Accordingly, we cannot find that the trial court acted in

any manner contrary to law in allowing the filing of supplementary evidence that

was in accordance with Civ. R. 56 and already in the record.            Vytas’ first

assignment of error is overruled.

                             Sixth Assignment of Error

       {¶23} In his sixth assignment of error, Vytas argues that the trial court

erred in overruling his Civ. R. 60(B) motion for relief from judgment.           The

Supreme Court of Ohio has determined that “[a] motion for relief from judgment

under Civ.R. 60(B) is addressed to the sound discretion of the trial court, and that

court's ruling will not be disturbed on appeal absent a showing of abuse of

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

abuse of discretion constitutes more than an error of law or judgment and implies

that the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140. When



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applying the abuse-of-discretion standard, a reviewing court may not simply

substitute its judgment for that of the trial court. Id.

       {¶24} Civ. R. 60(B) specifically sets forth the grounds for relief from

judgment and provides as follows:

       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. A motion under this subdivision (B) does not
       affect the finality of a judgment or suspend its operation.

In order to prevail on a motion brought pursuant to 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. (1976), 47 Ohio St.2d 146, 351



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N.E.2d 113 at paragraph two of the syllabus. All three elements must be

established, and the test is not fulfilled if any one of these requirements is not met.

ABN AMRO Mtge. Group, Inc. v. Jackson, 159 Ohio App.3d 551, 556, 824 N.E.2d

600, 2005-Ohio-297.

       {¶25} In the present case, Vytas essentially argues that his motion for relief

from judgment should have been granted because he was dissatisfied with the trial

court’s grant of summary judgment in favor of Janina. In support of his motion,

Vytas does not cite any of the first four grounds for granting relief from judgment,

as articulated in Civ. R. 60(B). Instead, Vytas argues that he is entitled to relief

under the “catch all provision,” which allows for relief for any other reason that

justifies relief. However, as will be discussed more fully in this court’s disposition

of Vytas’ second, third, fourth, and fifth assignments of error, this Court cannot

find any error in the trial court’s grant of summary judgment. Therefore, we

cannot find an abuse of discretion in the judgment of the trial court denying Vytas’

Civ. R. 60(b) motion. Accordingly, Vytas sixth assignment of error is overruled.

              Second, Third, Fourth, and Fifth Assignments of Error

       {¶26} Our review of the record reveals that the trial court has thoroughly

addressed all of the relevant factual and legal issues pertaining to Vytas’ second,

third, fourth, and fifth assignments of error in its judgment entry in which it

granted Janina’s motion for summary judgment. Accordingly, for the purposes of



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ruling on Vytas’ assignments of error herein, we hereby adopt the well-reasoned

Decision/Order of the trial court on Janina’s motion for summary judgment dated

August 21, 2008, incorporated and attached hereto as Exhibit A, as our opinion in

this case.

       {¶27} For the reasons stated in the final judgment entry of the trial court,

attached and incorporated herein as Exhibit A, Vytas’ second, third, fourth, and

fifth assignments of error are overruled.

       {¶28} Based on the foregoing, the August 21, 2008 and April 3, 2009

Decisions of the Court of Common Pleas of Shelby County, Ohio are affirmed.

                                                               Judgments Affirmed

PRESTON, P.J., concur.

/jlr



ROGERS, J., Concurring in Part and Dissenting in Part.

       {¶29} I concur with the majority on the first, third, and fifth assignments of

error. I also concur with the result reached by the majority on the sixth assignment

of error. However, I respectfully dissent with the reasoning and result on the

second and fourth assignments of error.

       {¶30} In the sixth assignment of error, Appellant argues that the trial court

erred in denying the motion for relief from judgment. While I concur that the



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motion was properly denied, I would find that the motion was simply an attempt to

use Civ.R. 60(B) in lieu of an appeal. The issues raised by Appellant in the

motion were all issues that could have been raised in a timely appeal. State ex rel.

McKinney v. Defiance Cty. Court of Common Pleas, 120 Ohio St.3d 277, 2008-

Ohio-6107 (‘“A Civ.R. 60(B) motion for relief from judgment cannot be used as a

substitute for a timely appeal’”), quoting Key v. Mitchell, 81 Ohio St.3d 89, 90-91,

1998-Ohio-643 (“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”). This motion should have been denied on

that basis.

       {¶31} Furthermore, I would consider the second and fourth assignments of

error together and sustain these two assignments. The antenuptial agreement

provides that Janina “shall” receive the sum of $100,000 from probate or non-

probate assets. It further provides that Janina “will make no additional claims on

the probate or non-probate assets of Alfonsas including but not limited to assets in

his revocable living trust * * *.” Contrary to the conclusion of the trial court and

the majority, it appears clear to me that this language places a maximum amount

that Janina may claim from the estate and/or trust.

       {¶32} Section II, paragraph F, of the antenuptial agreement provides:

       The Parties may from time to time during the marriage establish
       common incidents of ownership of property, real, personal, and


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      mixed, and make gifts to each other and acquire property
      together, in joint names, with right of survivorship or as tenants
      in common, none of which shall be considered a waiver or
      amendment of the terms of this Agreement, except to the extent
      that either Party should modify his or her Last Will and
      Testament. However, to the extent that either party should
      modify his or her Last Will and Testament, if it varies from the
      terms of this Agreement so as to give more to the surviving
      spouse than [sic] the first-dying spouse is obligated to make by
      this Antenuptial Agreement, such modification shall constitute a
      partial waiver, limited to the specific assets mentioned in a Last
      Will and Testament hereafter executed * **.

       {¶33} Neither the trial court nor the majority have discussed this language,

but apparently concluded that Alfonsas had intended a gift of additional monies to

Janina by creating a joint savings account. I disagree.

       {¶34} Alfonsas clearly intended for the Florida condominium to be in

addition to the $100,000 because he amended his will and the trust to specify the

gift of that property as required by the antenuptial agreement. However, there was

no such amendment to the will which would allow the joint savings account in

Florida to be excluded from the calculation of her entitlement to $100,000. I

would, therefore, find that regardless of the characterization of the ownership of

the joint savings account, by the terms of the antenuptial agreement, it counts

towards Janina’s entitlement to $100,000.

       {¶35} Accordingly, I dissent from the majority opinion on the second and

fourth assignments of error.




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