[Cite as Chumlea v. Chumlea, 2015-Ohio-4196.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                    CLARK COUNTY

 WILLIAM C. CHUMLEA                     :
     Plaintiff-Appellee                 :
                                        :  Appellate Case No. 2014-CA-8
 v.                                     :
                                        :  Trial Court Case No. 2004-DR-439
 CHARLOTTE E. CHUMLEA                   :
     Defendant-Appellant                :  (Civil Appeal from
                                        :   Common Pleas Court)
 and                                    :
                                        :
 MICHELE CHUMLEA                        :
     Third-Party Defendant-Appellee     :
                                        :
                                   ...........
                                            OPINION
                          Rendered on the 9th day of October, 2015.
                                            ...........

DAVID M. MARTIN, Atty. Reg. No. 006623, 4 West Main Street, Suite 707, Springfield,
Ohio 45502
      Attorney for Plaintiff-Appellee, William C. Chumlea

JAMES R. KIRKLAND, Atty. Reg. No. 009731, 130 West Second Street, Suite 840,
Dayton, Ohio 45402
      Attorney for Third-Party Defendant-Appellee, Michele Chumlea

JAMES A. ALEXANDER, Atty. Reg. No. VA 88223, 1130 George James Loop, Radiant,
Virginia 22732
and
STEVEN MAGAS, Atty. Reg. No. 0009131, 7733 Beechmont Avenue, Suite 210,
Cincinnati, Ohio 45255
       Attorneys for Defendant-Appellant, Charlotte C. Chumlea
                                                                                          -2-




                                      .............

HALL, J.

       {¶ 1} Charlotte Chumlea appeals from the trial court’s December 12, 2013 entry in

which it, inter alia, overruled her motion for relief under Civ.R. 60(B), revoked an existing

constructive trust, stayed a decision regarding life insurance, and awarded her $150 in

attorney fees.

       {¶ 2} Charlotte advances four assignments of error. First, she contends the trial

court erred in awarding her only $150 in attorney fees. Second, she claims the trial court

erred in denying her Civ.R. 60(B) relief with regard to appellee William Chumlea’s

allegedly fraudulent concealment of income totaling roughly $23,000. Third, she asserts

that the trial court erred in revoking and denying a constructive trust to protect her from

William transferring assets to his new wife. Fourth, she argues that the trial court erred in

staying its decision to require William to obtain life insurance.

       {¶ 3} The record reflects that Charlotte and William divorced in March 2007

following a 33-year marriage. Since that time, numerous post-divorce proceedings have

occurred. Based on the multiple boxes of case-related motions, transcripts, court rulings,

and other materials that have been filed, the post-divorce proceedings plainly have been

acrimonious. As relevant here, the trial court held three days of hearings in September

2012 and April 2013 to resolve a plethora of motions. At least 13 of those motions were

filed by Charlotte. (Doc. #293 at 9). They included, among other things, contempt motions,

discovery motions, attorney-fee motions, and a Civ.R. 60(B) motion for relief from the

divorce decree on the basis of alleged fraud. With one exception, the trial court overruled
                                                                                                  -3-


Charlotte’s motions. The exception involved its finding that William, who was employed

by Wright State University at the time of the hearings, previously had engaged in

contemptuous conduct by designating his new wife, Michele Chumlea, the beneficiary of

his public-pension benefits in the event that he should die prior to retirement. (Id. at 11).

The trial court further noted, however, that William had since complied with its order to

name Charlotte his pre-retirement beneficiary. (Id. at 15). The trial court nevertheless

found him in civil contempt for his prior actions. (Id. at 13). To protect Charlotte from

William again changing his pre-retirement beneficiary, the trial court ordered him to

maintain life insurance on his life, with Charlotte as the beneficiary. (Id. at 18). The trial

court “suspended” this obligation, however, “upon condition that the Plaintiff, William

Chumlea, continues to designate Charlotte Elizabeth Chumlea as the sole beneficiary of

all of his Public Pension Retirement Account contributions, with accumulated interest

thereon, until such time as he retires and Charlotte Elizabeth Chumlea begins receiving

her covertured share of the Court ordered monthly survivor benefits to which she is

entitled.” (Id.). In light of this ruling, the trial court vacated a prior constructive trust that it

had imposed on Michele Chumlea to serve the same purpose as the life insurance, i.e.,

to protect Charlotte’s interest in William’s pension benefits in the event that he should die

before retiring. (Id. at 19).

       {¶ 4} A second major issue during the three days of hearings involved Charlotte’s

request for Civ.R. 60(B) relief from the divorce decree. She sought relief on the basis that

William allegedly had concealed more than $23,000 in income by deferring receipt of it

until after the divorce decree became final. The trial court addressed this issue in its

December 12, 2013 entry as follows:
                                                                               -4-




       On August 10, 2011, Charlotte filed a Motion seeking relief from the

original Judgment Entry and Decree of Divorce filed March 21, 2007. The

Court conducted a final evidentiary hearing concerning this issue which took

place over the course of the three days set forth hereinbefore. Essentially,

Charlotte contends that Dr. Chumlea had, as of July 31, 2006 (which was

between the fourth and final day of testimony in the parties’ divorce case)

earned the right to receive additional income in the sum of $23,128.00. The

Court notes that Dr. Chumlea received that sum of money on April 5, 2007,

approximately four months after he last testified at the parties’ divorce

hearing.

       Charlotte essentially contends that Mr. Chumlea “schemed” to hide

this income. The totality of the credible evidence does not support

Charlotte’s contention concerning this issue. The Court does not find that

Dr. Chumlea “schemed” to hide this income despite Charlotte’s contentions

to the contrary.

                                  ***

       In the case at hand, Charlotte essentially contends that Dr. Chumlea

committed fraud, which would be properly addressed by Civil Rule 60(B)(3).

This Motion must be brought not more than one year after the Divorce

Decree was filed, which it was not. Rather, Charlotte brings her Motion in

accordance with Civ.R. 60(B)(5) which is permitted, by law, to be made

“within a reasonable time.” She cannot, however, utilize a Motion for relief
                                                                                          -5-


       from judgment under Civil Rule 60(B)(5) if the basis for the Motion meets

       the criteria of one of the other subsections of Civil Rule 60(B). Such is the

       case here.

                                          ***

              Charlotte’s Motion is not made in a timely fashion and even if it was,

       she has not presented sufficient evidence that she is entitled to relief under

       one of the grounds set forth in Civ.R. 60(B) nor has she presented a

       meritorious claim. Accordingly, her Motion for Relief from Judgment is not

       well taken and her request for attorney fees is similarly not well taken.

(Id. at 24-25).

       {¶ 5} Having found William in civil contempt for his earlier failure to designate

Charlotte as his pre-retirement pension beneficiary, however, the trial court still awarded

her “nominal” attorney fees of $150. (Id. at 33-34). This appeal followed.

       {¶ 6} As a means of analysis, we turn first to Charlotte’s third and fourth

assignments of error, which are moot. In her third assignment of error, Charlotte contends

the trial court erred in vacating the constructive trust it previously had imposed on Michele

Chumlea. Charlotte asserts that the April 2011 order imposing the constructive trust was

a final order from which an appeal was taken. Once that appeal was dismissed with

prejudice, Charlotte argues that the law-of-the-case doctrine precluded the trial court from

vacating the constructive trust.

       {¶ 7} We find Charlotte’s argument unpersuasive. On April 26, 2011, the trial court

imposed a constructive trust on William’s new wife, Michele Chumlea. The purpose of the

constructive trust was to prevent William from making Michele the beneficiary of his
                                                                                            -6-


pension in contravention of a trial court order awarding Charlotte a coverture fraction of

the pension. (Doc. #144). Charlotte and the trial court were particularly concerned that

William might designate Michele as his pre-retirement beneficiary and then die, leaving

Charlotte with no benefits at all.

       {¶ 8} We note, however, that William subsequently retired effective July 1, 2014

with Charlotte receiving her coverture share of his pension benefits. Because William

retired with benefits under “option 4” pursuant to R.C. 3307.60(A)(4), Charlotte also will

receive her coverture share of survivor benefits for the remainder of her life. It is apparent,

therefore, that the previously-imposed constructive trust is no longer necessary. We note

too that the trial court explicitly reserved jurisdiction over the constructive trust when

imposing it. (Doc. #144, Exh. A, pg. 4). For these reasons, we see no error in the trial

court’s decision to vacate the constructive trust. The third assignment of error is overruled.

       {¶ 9} In her fourth assignment of error, Charlotte contends the trial court erred in

staying its order for William to obtain life insurance to protect her interest in his pension.

Charlotte insists that “[i]t is unreasonable to expose [her] to a second theft before

implementing life insurance protection.” (Appellant’s brief at 25). As noted above,

however, the purpose of the life insurance was to prevent William from re-naming his new

wife as the sole beneficiary of his pension benefits before his retirement. (Sept. 13, 2012

Tr. at 123). But William now has retired. When he retired, he named Charlotte as a

beneficiary. She admittedly is receiving a coverture fraction of his pension, and she has

an irrevocable right to survivor benefits for life. 1 Therefore, the purpose for the life-


1
 William selected Option 4 for his State Teachers Retirement which provides partial
continuing lifetime benefits for both Charlotte and his current wife Michele. This selection,
and its consequences, has been challenged in a separate appeal in Clark Co. App. No.
                                                                                           -7-


insurance protection regarding pre-retirement survivor benefits no longer exists. The

issue is moot. The fourth assignment of error is overruled.

       {¶ 10} We turn next to Charlotte’s second assignment of error, which challenges

the trial court’s denial of her Civ.R. 60(B) motion concerning the roughly $23,000 in

income that William allegedly “hid” by delaying his receipt of it until after the divorce

decree became final. Charlotte asserts that “[t]he conclusory denial of the Civ.R. 60(B)

motion as late, without any reasoning, does not comport with the facts.” (Appellant’s brief

at 23). She contends she filed her motion promptly upon discovering “Mr. Chumlea’s

unrestricted right to the income in 2006, his control of the funds, his deliberate acts in

hiding the income until after the decree, his telling his attorney about the income, his false

testimony in court omitting these funds from his full income, and his taking of the money

immediately after the decree was issued.” (Id.). She asserts that her motion was

meritorious and timely under Civ.R. 60(B)(5) because it involved “fraud on the court.” In

a reply brief, Charlotte suggests that the “fraud on the court” involved William’s attorney

acting in concert with William to conceal the $23,000 in income from the court and to

prevent her from discovering it.

       {¶ 11} Upon review, we see no error in the trial court’s denial of Civ.R. 60(B) relief.

During the three days of hearings on the parties’ motions, William provided detailed

testimony about the income at issue. He insisted that he had testified truthfully about his

income at the time of the divorce hearing. William explained that he did not mention the

roughly $23,000 at issue because he had not received it. (Sept. 13, 2012 Tr. at 79). He

stated that the money was part of a faculty-incentive program intended to encourage


2014-CA-75.
                                                                                            -8-

Wright State University faculty members such as him to obtain grants. (Id. at 80-81). He

also provided reasons why his receipt of the money was delayed until after the divorce

decree became final. (Id. at 82-89). They included the fact that the funds initially were

held in another faculty member’s account and the fact that he was permitted to use the

funds for other job-related expenses, instead of taking a cash incentive payment, and he

had contemplated doing so. (Id.; see also Sept. 14, 2012 Tr. at 33, 53-57; April 26, 2013

Tr. at 73). Although Charlotte disbelieves these explanations, the trial court held that the

evidence did not support a finding that William fraudulently had schemed to hide the

income by delaying receipt of it. (Doc. #293 at 24). Therefore, the trial court found no

basis for relief on the grounds of fraud even assuming, arguendo, that her motion was

timely.

          {¶ 12} It is well settled that “[m]otions for relief from judgment under Civ.R. 60(B)

are addressed to the sound discretion of the trial court, and the court’s ruling ‘will not be

disturbed on appeal absent a showing of abuse of discretion.’ * * *.” Jackson v.

Hendrickson, 2d Dist. Montgomery No. 21921, 2008-Ohio-491, ¶ 28. “ ‘Abuse of

discretion’ has been defined as an attitude that is unreasonable, arbitrary, or

unconscionable. * * * A decision is unreasonable if there is no sound reasoning process

that would support that decision. AAAA Enterprises, Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 597 (1990) * * *.” Bohme v. Bohme,

2d Dist. Montgomery No. 26021, 2015-Ohio-339, ¶ 11.

          {¶ 13} Here the trial court overruled Charlotte’s motion after conducting a hearing

and finding that the evidence did not support her claim that William fraudulently had

schemed to hide the money at issue. In light of William’s testimony on the issue, we
                                                                                         -9-


cannot say the trial court abused its discretion in reaching this conclusion. Accordingly,

the second assignment of error is overruled.

       {¶ 14} In her sole remaining assignment of error, Charlotte challenges the trial

court’s decision to award her only nominal attorney fees of $150. She references, among

other things, what she characterizes as William’s “theft” of $2,250,000, his delays and

discovery violations, his unaccounted-for deposits of $117,424.34 in his accounts, and

his one-time arrest to compel his attendance at a court proceeding as evidence that her

professed post-divorce attorney fees totaling about $100,000 were warranted and that

William should have been required to pay them. (Appellant’s brief at 21-23).

       {¶ 15} Charlotte focuses most of her attention of the first issue, what she

characterizes as William’s “theft” of $2,250,000 from her. (Id. at 22-23). This is an

apparent reference to the fact that William, for a period of time, failed to comply with a

court order to designate her as beneficiary of his pre-retirement survivor benefits before

his retirement from Wright State University. The $2,250,000 figure Charlotte uses appears

to be an estimate of the lump-sum present value of his survivor benefits but, fortunately,

that estimated value would only apply if she survived and he had died before retirement.

As noted above, although Charlotte had been his pre-retirement survivor beneficiary, he

made his new wife, Michele Chumlea, such beneficiary when he remarried. (Doc. #293

at 10). That action prompted Charlotte to file a July 2010 contempt motion against William.

The trial court sustained her motion while also noting, however, that William had since

properly designated Charlotte as the beneficiary and had continued to keep her so

designated for approximately three years prior to the court’s hearing on the matter. (Id. at

15). Nevertheless, as a result of sustaining the contempt motion, the trial court awarded
                                                                                          -10-

Charlotte attorney fees of $150. (Id. at 33).



       {¶ 16} We review a trial court’s award of attorney fees for an abuse of discretion.

Taylor v. Taylor, 2d Dist. Miami No. 2012 CA 21, 2015-Ohio-701, ¶ 37. Having reviewed

the record, we see no abuse of discretion here because we cannot say the trial court’s

attorney-fee award was unreasonable, arbitrary, or unconscionable. Aside from the one

contempt motion discussed above, the trial court overruled all of the other motions in

connection with which Charlotte had sought attorney fees. (Id. at 19-34). A number of

those motions addressed discovery issues. The trial court noted that it had afforded

Charlotte “great leeway concerning discovery issues[.]” (Id. at 19). It also found that “[t]he

discovery which she requested was voluminous and required many hours of effort by Dr.

Chumlea to answer questions, secure documents and gain compliance with Charlotte’s

multitude of discovery requests.” (Id.). The record supports this finding. At one point,

William testified that he had spent “at least 98 hours” over a three-month period

responding to discovery requests. (April 26, 2013 Tr. at 73). Finally, the trial court found

“from the totality of the credible evidence, that Dr. Chumlea has, for the most part, during

the pendency of this litigation, acted in good faith concerning the issues of discovery[.]”

(Id. at 19-20). Later in its ruling, the trial court concluded that “Dr. Chumlea, for the most

part, acted in good faith in complying with Charlotte’s voluminous discovery requests as

well as the requirements placed upon him by this Court’s Temporary Orders.” (Id. at 32).

The trial court is better positioned than this court to make this determination, which was

well within its discretion.

       {¶ 17} The trial court also overruled other assorted motions filed by Charlotte,
                                                                                       -11-


including the Civ.R. 60(B) motion discussed above, and declined to grant her attorney

fees in connection with them. (Doc. #293 at 21-26). In her other assignments of error on

appeal, Charlotte has not established any error by the trial court in its ruling on these

motions. Therefore, we cannot say the trial court erred in refusing to award her attorney

fees predicated on them.

      {¶ 18} Finally, we turn to Charlotte’s allegation that William had unexplained bank

deposits of $117,424.34 in his accounts. By itself, such an allegation (even if true) does

not mandate an award of attorney fees to Charlotte.2 At the time of the hearings below,

Charlotte voluntarily dismissed, without prejudice to refiling, a pending motion to modify

spousal support that apparently had been based, at least in part, on William’s alleged

additional bank deposits of roughly $117,000 and/or his receipt of the roughly $23,000

incentive payment discussed above. (Doc. #300). If Charlotte ultimately succeeds in

having spousal support modified, then she potentially might be entitled to an additional

attorney fee award for her effort. That issue, of course, would be for the trial court to

resolve in the first instance. It is not now before us because the record on appeal does

not reveal any modification of Charlotte’s spousal support based on William having

previously-unknown additional income. For the reasons set forth above, Charlotte’s

assignment of error concerning attorney fees is overruled.

      {¶ 19} Having overruled each assignment of error, we affirm the judgment of the

Clark County Common Pleas Court, Domestic Relations Division.

                                    .............


2 In his testimony below, William suggested that these funds simply might be money
transferred from his new wife’s account into his account rather than additional income.
(April 26, 2013 Tr. at 76).
                                     -12-




FAIN, J., and WELBAUM, J., concur.


Copies mailed to:

David M. Martin
James R. Kirkland
James A. Alexander
Steven M. Magas
Hon. Thomas J. Capper
