[Cite as Doyle v. St. Clair, 2017-Ohio-5477.]


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

JOANNE DOYLE                                          C.A. No.     16CA010967

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JACK ST. CLAIR                                        COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellee                                      CASE No.   08 DR 069738

                                  DECISION AND JOURNAL ENTRY

Dated: June 26, 2017



        CALLAHAN, Judge.

        {¶1}     Appellant, JoAnne Doyle, appeals the judgment entered in favor of Appellee, Jack

St. Clair, in the Lorain County Court of Common Pleas, Domestic Relations Division. For the

reasons set forth below, this Court reverses.

                                                 I.

        {¶2}     On September 11, 2008, Ms. Doyle filed for divorce from Mr. St. Clair. Three

months later, Ms. Doyle and Mr. St. Clair, without the involvement of their attorneys, agreed to

terms which settled their divorce. An outline of the terms were provided to their attorneys and

used by them to draft the separation agreement. The parties executed the separation agreement

and an addendum and incorporated it into the final divorce decree on February 12, 2009. The

outline of the terms of the separation agreement was not filed with or incorporated into the final

divorce decree.
                                                2


         {¶3}   Among other things, the outline provided that Mr. St. Clair would be responsible

for all debts he and Ms. Doyle incurred during the marriage, as well as his son’s loan, while Ms.

Doyle would be responsible for the loan taken out by her daughter and son-in-law (“the Steindl

loan”). However, this provision regarding their children’s debts was omitted from the separation

agreement. Instead, the separation agreement provided that Mr. St. Clair was responsible for all

mortgage loans owed to Lorain National Bank and Fifth Third Bank. The Steindl loan was held

by Lorain National Bank.

         {¶4}   In January 2014, almost five years after the filing of the divorce decree, Ms.

Doyle filed a show cause motion against Mr. St. Clair regarding his failure to make full property

equalization payments to her under the terms of the separation agreement. In response, Mr. St.

Clair filed a motion to amend judgment pursuant to Civ.R. 60(B)(5) alleging that Ms. Doyle was

responsible for the Steindl loan, but that term had been mistakenly left out of the separation

agreement incorporated into the final divorce decree. Mr. St. Clair also sought a credit for the

payments he made on the Steindl loan towards his property equalization payments due to Ms.

Doyle.

         {¶5}   The domestic relations court heard oral arguments and, pursuant to Civ.R.

60(B)(5), granted Mr. St. Clair’s motion to amend the separation agreement to reflect each party

was responsible for their own children’s debts. The court set the matter for further hearing with

the magistrate. Ms. Doyle appealed, but this Court dismissed her appeal for lack of a final,

appealable order. Doyle v. St. Clair, 9th Dist. Lorain No. 14CA010634 (Sept. 5, 2014).

         {¶6}   Upon remand, a hearing was held and the magistrate found Ms. Doyle’s show

cause motion to be moot based on the domestic relations court’s earlier ruling granting a

modification of the separation agreement. The domestic relations court adopted the magistrate’s
                                                3


decision and issued a judgment dismissing Ms. Doyle’s show cause motion. Ms. Doyle appealed

that judgment, but only challenged the domestic relations court’s decision to grant the Civ.R.

60(B) motion. Because the domestic relations court’s decision from which she appealed was

limited to the dismissal of the show cause motion and Ms. Doyle did not challenge that

dismissal, this Court affirmed the domestic relations court’s decision. Doyle v. St. Clair, 9th

Dist. Lorain No. 14CA010697, 2016-Ohio-166, ¶ 6, 10.

       {¶7}    The case was returned to the domestic relations court where it entered a final

entry granting Mr. St. Clair’s motion to amend the separation agreement regarding the parties’

responsibility for their own children’s debts and awarded Mr. St. Clair “credit for [the] amounts

[he] paid toward the parties’ adult children’s loans toward his spousal support obligation.” Ms.

Doyle timely appeals, raising one assignment of error for review.

                                                II.

       THE TRIAL COURT ERRED TO THE PREJUDICE OF [MS. DOYLE] BY
       GRANTING [MR.] ST. CLAIR’S 60(B) MOTION.

       {¶8}    In her single assignment of error, Ms. Doyle argues the domestic relations court

abused its discretion when it granted Mr. St. Clair’s motion to amend the separation agreement.

This Court agrees.

       {¶9}    The decision to grant or deny a Civ.R. 60(B) motion is within the sound discretion

of the trial court. Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987); Jackson v. Coker, 9th Dist.

Summit No. 27123, 2014-Ohio-5114, ¶ 8. An abuse of discretion “‘implies that the [trial] court’s

attitude [was] unreasonable, arbitrary or unconscionable.’” Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980). When applying

the abuse of discretion standard, this Court may not simply substitute its own judgment for that

of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
                                                 4


       {¶10} In order to prevail on a Civ.R. 60(B) motion, the movant must establish that: (1)

the party has a meritorious defense or claim; (2) a circumstance arises under Civ.R. 60(B)(1) to

(5); and (3) the motion is made within a reasonable time, and when filing under Civ.R. 60(B)(1)

to (3), the motion is within one year of the judgment or order. GTE Automatic Elec., Inc. v. ARC

Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. If any of these three

requirements are not met, the motion must be denied. Rose Chevrolet, Inc. v. Adams, 36 Ohio

St.3d 17, 20 (1988). However, “Civ.R. 60(B) may not be used as a substitute for appeal.” Doe v.

Trumbull Cty. Children Servs. Bd., 28 Ohio St.3d 128, 131 (1986).

       {¶11} Civ.R. 60(B)(1) through (5) allows the trial court to relieve parties from a final

judgment for:

       (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.

Civ.R.60(B)(1)-(5).

       {¶12} Ms. Doyle asserts four bases as to how the domestic relations court abused its

discretion when granting Mr. St. Clair’s motion to amend: 1) Mr. St. Clair improperly used

Civ.R. 60(B)(5) as the basis for his motion to amend when another provision of Civ.R. 60(B)

was available, namely Civ.R. 60(B)(1); 2) Mr. St. Clair’s motion to amend was untimely; 3)

there was no mutual mistake entitling Mr. St. Clair to relief; and 4) the domestic relations court’s

findings of fact were not based upon any evidence.
                                                 5


       Improper use of Civ.R. 60(B)(5)

       {¶13} 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 necessitates it.

Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 (1983), paragraph one of the syllabus; Cerney v.

Norfolk & W. Ry. Co., 104 Ohio App.3d 482, 491 (8th Dist.1995). 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. Strack

v. Pelton, 70 Ohio St.3d 172, 174 (1994). It should not be used as a substitute for any of the other

more specific provisions of Civ.R. 60(B), where the one-year time limit has expired. Caruso-

Ciresi at 66.

       {¶14} Ms. Doyle argues, “Mr. St. Clair seeks relief for an alleged mistake of fact” and

thus was required to file his motion under Civ.R. 60(B)(1) and not Civ.R. 60(B)(5). Civ.R.

60(B)(1) provides a mechanism for a party to vacate a judgment arising from “mistake,

inadvertence, surprise or excusable neglect.” A mistake under Civ.R. 60(B)(1) contemplates a

mistake by a party or his legal representative. See Culgan v. Miller, 9th Dist. Medina No.

10CA0074-M, 2011-Ohio-6194, ¶ 12, citing Karpanty v. Scheer, 6th Dist. Lucas No. L-86-020,

1986 WL 6282, *2 (June 6, 1986). The alleged mistake in this case is the parties’ and their

counsel’s failure to include a provision in the separation agreement that Ms. Doyle would be

responsible for the Steindl loan.

       {¶15} Mr. St. Clair filed a motion to amend judgment pursuant to Civ.R. 60(B). In his

motion, Mr. St. Clair stated Civ.R. 60(B) “allows a court to grant relief from judgment for

mistake or fraud.” He then cited Civ.R. 60(B)(5) and stated “a court [can] grant a party relief

from judgment for ‘any other reason justifying relief from the judgment.’” In his post-hearing
                                                 6


brief, Mr. St. Clair stated he “did not file his motion pursuant to Rule 60(B)(1), (2) or (3). [He]

filed his motion pursuant to Rule 60(B)(5).” Moreover, the domestic relations court granted the

motion based on Civ.R. 60(B)(5) only.

       {¶16} Despite Mr. St. Clair’s adamant position that he filed his motion pursuant to

Civ.R. 60(B)(5), he asserted facts that supported Civ.R. 60(B)(1). Mr. St. Clair’s motion argued

“[p]aragraph 6 of the typed informal writing reached by [Ms. Doyle] and [him] on their own,

reflected this understanding [regarding who was responsible for the Steindl loan and] [i]t was

simply an error that the final separation agreement neglected to include that provision.” Mr. St.

Clair’s motion explained that they negotiated the terms of a separation agreement without the

assistance of counsel, gave the terms to their counsel, and counsel typed the terms into a

separation agreement. Mr. St. Clair claims the Steindl Loan provision “was inadvertently left

out” of the separation agreement and he “was not aware that the separation agreement attached to

the divorce decree did not have the correct language regarding [Ms. Doyle’s] duty to pay [the

Steindl loan].” Mr. St. Clair “believed [this term] was in the final separation agreement.”

       {¶17} Further, Mr. St. Clair’s counsel stated during the hearing on the motion to amend,

that his office “generated” the separation agreement and his office “missed something that [Ms.

Doyle and Mr. St. Clair] had put into their outline, and that’s the subject of this motion.” Mr. St.

Clair’s attorney conceded there was some confusion and error during the signing of the

separation agreement: “I take some responsibility here because the final document that [Mr. St.

Clair] signed, not only did [it] not have that little provision because it just said he would assume

all the Lorain County National Bank loans, it was missing a whole page of other things that [Ms.

Doyle’s attorney] wanted for his client.” The argument presented by Mr. St. Clair’s attorney
                                               7


further supports the position that Mr. St. Clair sought to amend the separation agreement based

on a mistake.

       {¶18} Lastly, the domestic relations court’s judgment entry stated that Ms. Doyle and

Mr. St. Clair had written out an agreement that the parties would assume liability for their own

adult children’s loans, but such agreement “was inadvertently left out of the final [s]eparation

[a]greement.” The court also found “that agreement by the parties was left out of their

[s]eparation [a]greement[] [and] neither attorney noted [the] same in a normally timely manner

and [] neither party noted [the] same at the time of the divorce.” The domestic relations court

recognized the parties’ mistake and their failure to discover the omission in a timely manner.

Nonetheless, the domestic relations court granted the motion to amend pursuant to Civ.R.

60(B)(5).

       {¶19} Based on the record, Mr. St. Clair was seeking relief under Civ.R. 60(B)(1) due to

a mistake and not for “any other reason” as contemplated in Civ.R. 60(B)(5). See Caruso-Ciresi,

5 Ohio St.3d at 66 (the facts of the case indicated relief could only be considered under Civ.R.

60(B)(1) and not Civ.R. 60(B)(5)). He sought this relief almost five years after the divorce

decree was filed. Because Mr. St. Clair’s argument is based on an alleged mistake, which falls

under Civ.R. 60(B)(1), he cannot seek relief under Civ.R. 60(B)(5).

       {¶20} The domestic relations court abused its discretion by permitting Mr. St. Clair to

use Civ.R. 60(B)(5) as a substitute for Civ.R. 60(B)(1) where the one-year time limit had

expired. Ms. Doyle’s assignment of error is sustained.

       Ms. Doyle’s remaining arguments

       {¶21} Ms. Doyle asserted three other arguments in support of the domestic relations

court abusing its discretion when it granted Mr. St. Clair’s motion to amend the separation
                                                 8


agreement. Based on this Court’s resolution of her first argument, this Court declines to address

her remaining three arguments as they have been rendered moot. See App.R. 12(A)(1)(c).

                                                III.

       {¶22} Ms. Doyle’s assignment of error is sustained. The judgment of the Lorain County

Court of Common Pleas, Domestic Relations Division is reversed and the cause is remanded for

proceedings consistent with this opinion.

                                                                              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 Lorain, 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.

       Costs taxed to Appellee.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT
                                          9


SCHAFER, P. J.
CARR, J.
CONCUR.


APPEARANCES:

DANIEL J. GIBBONS, Attorney at Law, for Appellant.

ANTHONY B. GIARDINI, Attorney at Law, for Appellee.
