[Cite as Saha v. Saha, 2019-Ohio-4496.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



SHIKHA SAHA                                      JUDGES:
                                                 Hon. William B. Hoffman, P. J.
        Plaintiff-Appellant                      Hon. John W. Wise, J.
                                                 Hon. Craig R. Baldwin, J.
-vs-
                                                 Case Nos. 2018 CA 00148 and
PRADEEP SAHA                                               2019 CA 00010

        Defendant-Appellee
                                                 OPINION




CHARACTER OF PROCEEDING:                      Civil Appeal from the Court of Common
                                              Pleas, Domestic Relations Division, Case
                                              No. 2018 CR 00079

JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       October 31, 2019



APPEARANCES:

For Plaintiff-Appellant                       For Defendant-Appellee

DOUGLAS C. BOND                               DENISE K. HOUSTON
D. COLEMAN BOND                               LAUREN A. GRIBBLE
BOND LAW, LTD                                 TZANGAS PLAKAS MANNOS LTD
600 Courtyard Centre                          220 Market Avenue South
116 Cleveland Avenue, NW                      Eighth Floor
Canton, Ohio 44702                            Canton, Ohio 44702
Stark County, Case Nos. 2018 CA 00148 and 2019 CA 00010                                2


Wise, J.

      {¶1}   Plaintiff-Appellant (former wife) Shikha Saha appeals from both her divorce

and a subsequent denial of her motion for relief from judgment in the Stark County Court

of Common Pleas, Domestic Relations Division. Defendant-Appellee (former husband)

is Pradeep Saha. The relevant facts leading to this appeal are as follows.

      {¶2}   Appellant and appellee were married in 2015. Two children were born as

issue of the marriage, one of whom is now emancipated.

      {¶3}   On January 29, 2018, Appellant Shikha filed a complaint for divorce in the

Stark County Court of Common Pleas, Domestic Relations Division (“trial court”).

Appellee Pradeep filed an answer and counterclaim on February 20, 2018. Both parties

filed financial affidavits in support of their respective pleadings.

      {¶4}   The divorce complaint and counterclaim proceeded to a final hearing before

the trial court on July 11, 2018. Both parties appeared with counsel. Appellee’s counsel

indicated that the parties had reached an agreement, and she proceeded to read the

terms of said agreement into the record. Appellant and appellee were each questioned

by counsel. Among other things, appellant stated that the agreement as read was

accurate and that she believed it was fair and equitable. Tr., July 11, 2018, at 14.

      {¶5}   However, on August 8, 2018, appellant, represented by new counsel, filed

an “objection to [the] separation agreement” and a request for an evidentiary hearing.

Appellee filed a response on August 28, 2018.

      {¶6}   The trial court nonetheless issued a final decree of divorce on August 31,

2018, incorporating the parties’ written separation agreement. Among other things,

Appellee Pradeep (former husband) was named as the custodial parent of the parties’
Stark County, Case Nos. 2018 CA 00148 and 2019 CA 00010                                   3


remaining unemancipated child, with companionship rights allocated to Appellant

Shikha, who was also ordered to pay child support to appellee pursuant to the worksheet

attached to the separation agreement. Appellee was ordered to pay a monthly sum

certain in spousal support to appellant for a period of six months commencing August 1,

2018, subject to a standard clause for death or remarriage.

      {¶7}   In regard to property issues, appellant agreed to quitclaim her interest in the

marital residence in North Canton, with appellee to assume the mortgage obligation. She

also agreed to cooperate with appellee in preparing the residence for sale. Five bank

accounts were listed, four in appellee’s name and one in joint form, with the notation that

appellee had paid to appellant, on July 11, 2018, the sum of $44,592.85, representing

her one-half of the total balance of the accounts. The separation agreement also made

provisions regarding pension and retirement plans, with appellant specifically to receive

$42,520.00 from appellee’s Schwab account, via a QDRO. Under a heading of “Lump

Sum Property Division Payment”, appellee was also to pay appellant the sum of

$47,907.15 as an equalization payment within sixty days of the filing of the decree. There

was also a statement that the parties had each received a check for $10,000.00 on July

11, 2018, related to a reimbursement of earnest money for a potential purchase of a

home in Texas. Finally, provisions were made for the debts of the marriage and the issue

of 2017 tax returns and the corresponding dependency exemption.

      {¶8}   On September 28, 2018, Appellant Shikha filed a motion for relief from

judgment under Civ.R. 60(B)(3), chiefly alleging that Appellee Pradeep had

misrepresented aspects of his financial information during the divorce action.
Stark County, Case Nos. 2018 CA 00148 and 2019 CA 00010                                      4


          {¶9}   In addition, Appellant Shikha directly filed a notice of appeal of the divorce

    decree on October 1, 2018, which was assigned appellate case number 2018CA00148.

    On November 26, 2018, this Court issued an order remanding the case to the trial court

    to “resolve the pending motion for relief from judgment.” Accordingly, the trial court

    conducted an evidentiary hearing on appellant’s 60(B) motion on December 20, 2018.

          {¶10} On December 21, 2018, the trial court issued a judgment entry denying the

    60(B) motion.

          {¶11} On January 22, 2019, Appellant Shikha filed a second notice of appeal, this

    time concerning the trial court’s denial of her 60(B) motion. This was assigned appellate

    case number 2019CA00010. This Court subsequently consolidated the two pending

    appeals.1

          {¶12} Appellant herein raises the following four Assignments of Error:

          {¶13} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY ISSUING THE

    DECREE OF DIVORCE THAT ADOPTED THE PARTIES' SEPARATION AGREEMENT

    WITHOUT HOLDING AN EVIDENTIARY HEARING ON APPELLANT'S OBJECTION

    TO THE SEPARATION AGREEMENT.

          {¶14} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY ISSUING THE

    DECREE OF DIVORCE THAT ADOPTED THE PARTIES' SEPARATION AGREEMENT

    BECAUSE IT WAS PROCURED BY FRAUD AND DURESS, AND THE TRIAL COURT



1  In addition, appellee filed with this Court a motion to dismiss the appeal on May 8,
2019, asserting that appellant had “cash[ed] and accept[ed]” all of the spousal support
and property settlement checks tied to the divorce decree. Appellant filed a motion in
response on May 28, 2019. Based on our review of the motions, we are not persuaded
that appellant’s actions constituted a full and formal satisfaction of judgment warranting
dismissal under the doctrine of mootness, and we will proceed to the merits of the present
appeal.
Stark County, Case Nos. 2018 CA 00148 and 2019 CA 00010                                5


WAS PREVENTED FROM DETERMINING WHETHER THE AGREEMENT WAS FAIR

AND EQUITABLE.

      {¶15} “III.   THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

APPELLANT'S MOTION TO VACATE THE DECREE OF DIVORCE AS THE

APPELLEE ADMITTED TO PERJURING HIMSELF DURING THE HEARING WHEN

THE SEPARATION AGREEMENT WAS READ INTO THE RECORD.

      {¶16} “IV. THE TRIAL COURT ABUSED ITS DISCRETION WITH RESPECT TO

ISSUING THE DECREE OF DIVORCE THAT ADOPTED THE PARTIES' SEPARATION

AGREEMENT AND DENYING THE APPELLANT'S MOTION TO VACATE AS THE

APPELLEE FAILED TO COMPLY WITH THE TRIAL COURT'S LOCAL RULES.”

                                              I.

      {¶17} In her First Assignment of Error, appellant argues the trial court abused its

discretion by issuing the final divorce decree without holding a hearing on appellant’s

post-hearing objection to the separation agreement. We disagree.

      {¶18} It is generally recognized that separation agreements are subject to the

same rules of construction as other types of contracts. See Pastor v. Pastor, 5th Dist.

Fairfield No. 04 CA 67, 2005-Ohio-6946, ¶ 18, citing Brown v. Brown (1993), 90 Ohio

App.3d 781, 784, 630 N.E.2d 763. But “[u]nder established case law, where the parties'

in-court settlement agreement is complete and the proposed judgment entry is consistent

with the terms of the in-court settlement, the trial court may enforce the in-court

settlement agreement and it may be incorporated into the trial court's judgment entry of

divorce even in the absence of an agreement in writing or when one of the parties later
Stark County, Case Nos. 2018 CA 00148 and 2019 CA 00010                                    6


refuses to give written approval.” Hundley v. Hundley, 5th Dist. Holmes No. 16CA002,

2016-Ohio-4618, ¶ 20 (additional citations omitted).

      {¶19} Furthermore, “[n]either a change of heart nor poor legal advice is a ground

to set aside a settlement agreement. A party may not unilaterally repudiate a binding

settlement agreement. * * * In the absence of fraud, duress, overreaching or undue

influence, or of a factual dispute over the existence of terms in the agreement, the court

may adopt the settlement as its judgment.” (Citation omitted). Walther v. Walther (1995),

102 Ohio App.3d 378, 383, 657 N.E.2d 332.

      {¶20} As an initial matter, we note appellant provides no specific authority under

statute or rule requiring a trial court to entertain an “objection” to a voluntary separation

agreement, pending issuance of the final decree, after the parties to a divorce have duly

appeared before the judge and read said agreement into the record. Generally, “[w]hen

the parties in a divorce or legal separation case reach an in-court settlement, the trial

court has the discretion to (1) adopt the agreement in full by incorporating it into a final

judgment entry; (2) reject some of the terms in the agreement, make independent rulings

on those terms, and incorporate the independent rulings and the remaining terms of the

agreement into a final judgment entry; or (3) reject the entire agreement and make

independent rulings on all of the issues raised in the complaint.” Lambert v. Lambert, 6th

Dist. Fulton No. F-05-002, 2005-Ohio-6145, ¶ 16, quoting Erb v. Erb, 8th Dist. Cuyahoga

No. 59615, 1991 WL 271412.

      {¶21} As such, we find the trial court had wide discretion under these

circumstances in addressing appellant’s post-hearing objection to the incorporation of

the separation agreement into the parties’ divorce.
Stark County, Case Nos. 2018 CA 00148 and 2019 CA 00010                                 7


      {¶22} Appellant primarily directs us to Roth v. Roth, 8th Dist. Cuyahoga No.

89141, 2008-Ohio-927. In that case, the parties appeared in court on April 12, 2006,

“following months of mediation” and submitted a separation agreement that had been

drafted by the mediator assigned to the divorce case. Id. at ¶ 7. The matter proceeded

to the scheduled trial date in the Cuyahoga County Court of Common Pleas, Domestic

Relations Division, in early October 2006. Certain property issues were addressed at

that time, and the trial court ordered each side to brief any remaining issues relating to

the enforcement of the separation agreement. Id. at ¶ 14. On October 30, 2006, the trial

court issued a ruling granting Enza Roth’s (wife’s) motion to enforce the in-court

agreement as written and signed on April 12, 2006. Id. at ¶ 16. After the trial court had

issued its final decree of divorce, Daniel Roth (husband) appealed. He reiterated on

appeal his objection to the proposed judgment entry, namely, that two schedules

referenced in the agreement as being attached to the agreement were in fact not

attached when presented to the trial court. Id. at ¶ 22. The Eighth District Court of

Appeals, ordering a reversal, concluded the trial court “[was] required to hold an

evidentiary hearing when the party opposing the agreement alleges fraud, duress, undue

influence, or any other factual dispute concerning the existence of the terms of a

settlement agreement.” Roth at ¶ 46.

      {¶23} In the case sub judice, however, there has been no allegation by appellant-

wife that the separation agreement incorporated into the decree differs in any respect

from the separation agreement to which both parties agreed during the July 11, 2018

divorce hearing. Appellant testified that she heard counsel read the agreement into the

record and that she agreed to the terms as read. She subsequently (albeit before the
Stark County, Case Nos. 2018 CA 00148 and 2019 CA 00010                                   8


decree was issued) attempted via her “objection” to present a conclusory allegation that

appellee had committed fraud, despite the pretrial discovery evident in the record and

despite her failure to articulate any inconsistencies between the parties' separation

agreement as read into the record and then adopted by the trial court.

      {¶24} We therefore find Roth to be factually and procedurally distinguishable from

the present case, and we do not conclude Roth establishes a bright-line rule mandating

a hearing under the unusual procedural circumstances of this matter. We find no abuse

of discretion in the trial court’s decision not to conduct a hearing on the objection to the

separation agreement subsequent to the July 11, 2018 divorce trial date.

      {¶25} Accordingly, appellant's First Assignment of Error is therefore overruled.

                                                II.

      {¶26} In her Second Assignment of Error, appellant contends the trial court erred

in issuing the parties’ divorce decree where the separation agreement had allegedly

been procured under fraud and/or duress. We disagree.

      {¶27} In regard to her claims of fraud, we reiterate that appellant, having been

unsuccessful in her “objection” to the separation agreement, proceeded to file a 60(B)(3)

motion after the decree, alleging fraud by appellee. We initially find that her present

arguments as to fraud are subsumed under our analysis of the Civ.R. 60(B) issues infra.

      {¶28} In regard to her claims of duress, we note appellant failed to make these

allegations in her objection to the adoption of the separation agreement. An appellate

court will generally not consider any error which a party complaining of the trial court's

judgment could have called but did not call to the trial court's attention at a time when

such error could have been avoided or corrected by the trial court. See, e.g., State v.1981
Stark County, Case Nos. 2018 CA 00148 and 2019 CA 00010                                 9


Dodge Ram Van (1988), 36 Ohio St.3d 168, 170, 522 N.E.2d 524. Nonetheless, we note

that under Ohio law, economic duress is shown "where the person claiming duress was

subjected to improper threats which deprived that person of any reasonable alternative

but to assent to the terms of the person making the threat." See Maust v. Bank One

Columbus, N.A., 83 Ohio App.3d 103, 108 (10th Dist.1992).

      {¶29} Appellant’s present arguments fall far short of meeting such a standard, and

we again find no abuse of discretion in the trial court’s decision not to conduct an

evidentiary hearing on appellant’s objection to the separation agreement.

      {¶30} Appellant's Second Assignment of Error is overruled.

                                              III.

      {¶31} In her Third Assignment of Error, appellant contends the trial court erred in

denying her Civ.R. 60(B) motion to vacate the parties’ decree of divorce. We disagree.

      {¶32} Civ.R. 60(B) states in pertinent part 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
Stark County, Case Nos. 2018 CA 00148 and 2019 CA 00010                                   10


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. ***.”

      {¶33} A motion for relief from judgment under Civ.R. 60(B) is addressed to the

sound discretion of the trial court and a ruling will not be disturbed absent an abuse of

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

discretion connotes more than an error of law or judgment, it implies the court's attitude

is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140. Specifically, this Court has recognized that a party

asserting fraud and misrepresentation under Civ.R. 60(B)(3) has the burden of proving

the assertion by clear and convincing evidence. See US Bank Natl. Assn. v. Marino, 5th

Dist. Delaware No. 2011CAE11 0108, 2012-Ohio-1487, ¶ 15.

      {¶34} At the final divorce hearing on July 11, 2018 in the case sub judice, appellee

was asked the following question by his trial counsel: “As, [sic] the beginning of this case

you filled out various affidavits, property affidavits, affidavits of income and expenses

and so forth. Through those affidavits, Pradeep, did you fully disclose all of your assets

and liabilities to your wife?” Tr., July 11, 2018, at 20. Appellee answered in the

affirmative. Id.

      {¶35} Appellant presently maintains that at the December 20, 2018 hearing on the

60(B) motion, appellee “admitted that his testimony at the July 11, 2018 [divorce] hearing

was false” and thus “clearly committed fraud.” Appellant’s Brief at 16. In support,

appellant cites page 30 of the December 20th transcript; however, we observe that

appellee is not the person testifying at that point in the record. See App.R. 16(A)(7).
Stark County, Case Nos. 2018 CA 00148 and 2019 CA 00010                                  11


      {¶36} In any event, appellant presently does not appear to challenge the trial

court’s determination in the judgment entry denying her Civ.R. 60(B) motion that the

“specific instances of fraud and concealment alleged” were limited to (1) appellee’s

Portage Community Bank account, (2) the Bank of America loan, (3) the Fort Worth

Credit Union account, (4) appellee’s Pershing account, (5) the 529 College Plan, and (6)

appellee’s income. See Judgment Entry, December 21, 2018, at 1-2. The trial court,

having heard the respective arguments and testimony during the 60(B) hearing,

determined that information regarding these accounts had either been provided in

discovery, listed on statements given to appellant, or became available via releases that

appellee had provided.

      {¶37} “[A] party may not use Civ.R. 60(B) to circumvent the terms of a settlement

agreement simply because, with hindsight, he or she has thought better of the agreement

which was entered into voluntarily and deliberately." Biscardi v. Biscardi, 133 Ohio

App.3d 288, 292 (7th Dist. 1999). Moreover, under Ohio law, in order for a movant to

have a successful claim under Civ.R. 60(B)(3), the adverse party must have prevented

the complaining party from fully and fairly presenting his or her claim or defense. Kell v.

Verderber, 1st Dist. Hamilton No. C-120665, 2013-Ohio-4223, ¶ 44 (additional citations

omitted).

      {¶38} In this instance, appellant fails to persuade us from the record that appellee

prevented her or her trial counsel from obtaining the information necessary for her

prosecution of the divorce action. Among other things, appellee testified at the 60(B)

hearing, and the trial court implicitly accepted, that he had updated his original financial

information provided in the February 2018 affidavit during the pendency of the divorce,
Stark County, Case Nos. 2018 CA 00148 and 2019 CA 00010                                  12


via discovery and other disclosures. See, e.g., Tr., December 20, 2018, at 5-9; 59-79.

Upon review, we are unable to conclude that the trial court’s decision denying the motion

for relief from judgment in this regard was unreasonable, arbitrary or unconscionable.

      {¶39} Appellant's Third Assignment of Error is therefore overruled.

                                                   IV.

      {¶40} In her Fourth Assignment of Error, appellant contends the trial court abused

its discretion by issuing the decree of divorce and/or denying her motion to vacate the

divorce decree, in light of the trial court’s local rules regarding financial statements. We

disagree.

      {¶41} Appellant directs us to Stark County Family Court Local Rule 12.02, which

states in pertinent part:

             It is necessary for each party to a divorce, legal separation,

      dissolution or annulment proceeding to have made full and complete

      disclosure of their financial status prior to the date of any hearings. The

      Clerk of Courts shall not accept for filing, any divorce, legal separation,

      petition for dissolution, annulment or counterclaim which does not include

      signed, sworn, current financial statements of the parties. A copy of the

      financial statement shall be delivered to opposing counsel prior to the

      hearing. ***.

      {¶42} Furthermore, Stark County Family Court Local Rule 12.03 states:

             There is an affirmative duty to update financial statements through

      amendment prior to any court hearing. If the information originally filed

      remains current, the initial filing will suffice.
Stark County, Case Nos. 2018 CA 00148 and 2019 CA 00010                                   13


      {¶43} We first observe the trial court was in a far better position than this Court to

determine in its own discretion whether or not appellee’s apparent technical violation,

under the local rules, of failing to update his financial information via an “amendment,”

as opposed to other methods of disclosure, constituted grounds for vacating the entire

decree. Secondly, appellant’s reliance on this Court’s decision in Robinson v. Robinson,

5th Dist. Stark No. 2002CA00009, 2002-Ohio-5760, is unpersuasive. In that case, we

affirmed the trial court's decision that vacated a portion of a prior decree based in part

upon a finding of noncompliance with a local rule of court concerning the filing of financial

statements. However, the appellant-wife in Robinson had completely failed to file any

financial affidavit during the legal separation/divorce action, which is not the case here.

Furthermore, the fact that we affirmed the trial court’s decision to partially vacate in

Robinson, under an abuse of discretion standard, does not mean that we are obligated

to reverse where a court decides not to vacate its prior decree despite a potential local

rule violation.

      {¶44} Appellant's Fourth Assignment of Error is overruled.

      {¶45} For the foregoing reasons, the judgments of the Court of Common Pleas,

Domestic Relations Division, Stark County, Ohio, are hereby affirmed.

By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.


JWW/d 1023
