[Cite as McFall v. McFall, 2013-Ohio-2320.]


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

JAMES E. MCFALL                                     C.A. No.     26418

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
BRENDA M. MCFALL                                    COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   DR 2009-01-0174

                                DECISION AND JOURNAL ENTRY

Dated: June 5, 2013



        MOORE, Presiding Judge.

        {¶1}    Defendant-Appellant, Brenda McFall, appeals from the April 2, 2012 judgment

entry of the Summit County Court of Common Pleas, Division of Domestic Relations. We

reverse.

                                               I.

        {¶2}    After nearly thirty-three years of marriage, James McFall (“Husband”) and Wife

divorced on February 22, 2010. At the time of their divorce, they had several retirement and

pension plans to be divided through Qualified Domestic Relations Orders (“QDRO”), including:

(1) Husband’s defined benefit pension from his service in the United States Air Force through

the Department of Defense, (2) Husband’s 401k with Toyota of Bedford through Wachovia, (3)

Wife’s defined benefit pension through First Energy Corp., (4) Wife’s retirement savings plan

through First Energy Corp., (5) Wife’s 401k plan through KeyBank, and (6) Wife’s defined

benefit pension through KeyBank. For purposes of determining the marital portion of the
                                                2


parties’ pensions, the length of the marriage was determined to be February 19, 1977, through

December 10, 2009.

       {¶3}   The parties’ Decree of Divorce included a provision entitled “Preretirement

Survivorship Protection for Alternate Payee,” which stated:

       In order to secure an Alternate Payee’s ownership right in the assigned portion of
       the Participant’s retirement benefits under the Plan, in the event that the latter
       predeceases the Alternate Payee and neither party has commenced his or her
       benefits under the Plan, such Alternate Payee shall be designated as the surviving
       spouse of the other for purposes of establishing his/her entitlement to receipt of
       this monthly preretirement surviving spouse annuity. This designation applies to
       the Marital Portion of a Participant’s Accrued Benefit as set forth above. In the
       event that the costs associated with providing this preretirement death benefit
       coverage are not fully subsidized by a Participant’s employer, then the Participant
       must make an affirmative election for such preretirement surviving spouse
       coverage in a timely manner and in accordance with his/her employer’s election
       procedures.

(Emphasis added.) However, the Decree of Divorce was silent as to survivorship benefits for

accounts in which the participant was already receiving benefits. Prior to the parties’ divorce,

the record indicates that Husband was receiving benefits from his military pension.

       {¶4}   In February of 2011, an order approved by both parties and the trial court was

journalized with regard to Husband’s military pension payable under the Civil Service

Retirement System. The order provided that, “[p]ursuant to Section 8341(h)(1) of Title 5, United

States Code, [Wife] shall be awarded a former spouse survivor annuity under the Civil Service

Retirement System to the same extent that was elected by [Husband] on his date of retirement, if

any.” (Emphasis added.) This order was then submitted to Husband’s plan administrator for

approval.

       {¶5}   In May of 2011, Wife received a letter from the Civil Service Retirement System

notifying her that she was denied the joint survivorship option for Husband’s military pension

because the language in the parties’ Decree of Divorce differs from the language in the proposed
                                                      3


QDRO. The effect of this decision is that if Husband predeceases Wife, Wife would no longer

receive any benefits through Husband’s military pension.

        {¶6}    After attempting unsuccessfully to rectify the situation with the plan administrator

and Husband, Wife filed a Civ.R. 60(B) motion with the trial court and attached an affidavit

stating, in part, that: (1) at the time of their divorce, Husband informed her that she had joint

survivorship in his retirement account that was already in payout, (2) she and Husband intended

to give each other survivorship benefits throughout the divorce, (3) the QDROs were drafted to

give the other party survivorship benefits in their former spouses’ retirement accounts, (4)

Husband’s plan administrator denied Wife joint survivorship benefits due to a language

discrepancy in the Decree of Divorce, and (5) the language used in the Decree of Divorce was

given to the parties’ attorneys by the trial court.

        {¶7}    Husband filed a response along with an affidavit, stating, in part, that the QDRO

“mirrors” the provisions of the divorce decree and that his military pension was in payout status

prior to the parties’ divorce. However, in his affidavit, Husband did not refute Wife’s assertions

that he told her she had joint survivorship benefits in his military pension at the time of the

divorce, or that it was the parties’ intention to give each other survivorship benefits.

        {¶8}    Without holding a hearing, the trial court denied Wife’s motion finding it to be

untimely and without merit.

        {¶9}    Wife appealed, setting forth two assignments of error for our consideration.

Because it is dispositive of this appeal, we will now address Wife’s second assignment of error.
                                                 4


                                                II.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT
       OVERRULED [WIFE’S] 60(B) MOTION TO VACATE WITHOUT HOLDING
       A HEARING WHERE [WIFE] HAD ALLEGED SUFFICIENT OPERATIVE
       FACTS WARRANTING RELIEF PURSUANT TO CIV.R. 60(B)[.]

       {¶10} Civ.R. 60(B) provides:

       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.

       {¶11} To prevail on a motion for relief from judgment under Civ.R. 60(B), a party must

demonstrate: (1) a meritorious defense or claim; (2) entitlement to relief under one of the

grounds stated in Civ.R. 60(B)(1) through (5); and (3) timeliness of the motion. 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 is not met, the motion is properly overruled. Strack v. Pelton, 70

Ohio St.3d 172, 174 (1994).

       {¶12} The question of whether such relief should be granted is within the sound

discretion of the trial court. Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987). This Court, therefore,

will not reverse the trial court’s decision absent an abuse of discretion. Kay v. Marc Glassman,

Inc., 76 Ohio St.3d 18, 19-20 (1996). The phrase “‘abuse of discretion’ * * * implies that the

[trial] court’s attitude [was] unreasonable, arbitrary or unconscionable.”           Blakemore v.
                                                5


Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, this

Court may not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66

Ohio St.3d 619, 621 (1993).

       {¶13} Further, “[a] movant has no automatic right to a hearing on a motion for relief

from judgment.” Aurora Loan Servs., L.L.C. v. Wilcox, 2d Dist. No. 2009 CA9, 2009-Ohio-

4577, ¶ 15, quoting Hrabak v. Collins, 108 Ohio App.3d 117, 121 (8th Dist.1995). “It is an

abuse of discretion for a trial court to overrule a Civ.R. 60(B) motion for relief from judgment

without holding an evidentiary hearing only if the motion or supportive affidavits contain

allegations of operative facts which would warrant relief under Civ.R. 60(B).” (Emphasis

added.) Aurora Loan at ¶ 15, citing Boster v. C & M Serv., Inc., 93 Ohio App.3d 523, 526 (10th

Dist.1994).

       {¶14} Here, Wife specifically argued that she was entitled to relief pursuant to Civ.R.

60(B)(5), which required her to demonstrate that her motion was made within a reasonable time.

Although the issue of “[w]hat constitutes ‘reasonable time’ for filing the motion under Civ.R.

60(B) depends upon the facts of the case,” Stickler v. Ed Breuer Co., 8th Dist. Nos. 75126,

75129, and 75206, 2000 WL 218380, *3 (Feb. 24, 2000), “[a] movant must offer some operative

facts or evidential material demonstrating the timeliness of his or her motion.”            In re

Guardianship of Brunstetter, 11th Dist. No. 2002-T-0008, 2002-Ohio-6940, at ¶ 14, citing Shell

v. Cryer, 11th Dist. No. 2001-L-083, 2002-Ohio-848.

       {¶15} The record indicates that, on May 11, 2011, Wife first discovered that the QDRO

for Husband’s military pension had been rejected because of an alleged discrepancy between the

language in the QDRO and the Decree of Divorce regarding the absence of post-retirement

survivorship language.    As stated above, the Decree of Divorce speaks to pre-retirement
                                                 6


survivorship benefits, but is silent as to post-retirement survivorship benefits. However, the

February 10, 2011 QDRO, ordering that Wife receive a portion of Husband’s benefits payable

under the Civil Service Retirement System, states that Wife “shall be awarded a former spouse

survivor annuity * * * to the same extent that was elected by [Husband] on his date of retirement,

if any.”

           {¶16} It is worth noting again that the February 10, 2011 QDRO was signed and

approved by both parties’ attorneys and the trial court.         Apparently, no one caught the

inconsistency between the language in the decree and the language in the QDRO.

           {¶17} While the language in the February 10, 2011 QDRO does not grant Wife an

absolute right to receive survivorship benefits in Husband’s pension, it does award Wife a

survivor annuity to the same extent that was elected by Husband on the date of his retirement, if

any.

           {¶18} In Wife’s affidavit supporting her Civ.R. 60(B) motion, she averred that when

Husband retired, he informed her that he elected for her to have survivorship benefits in his

pension. Husband’s affidavit does not refute that he told Wife that he elected for her to have

survivorship benefits at the time of his retirement. Therefore, at the time of the parties’ divorce,

Wife believed that Husband had already elected for her to receive survivorship benefits. As

such, it was not unreasonable for Wife to file her Civ.R. 60(B) motion only after receiving the

2011 letter alerting her that benefits would terminate upon Husband’s death.

           {¶19} Accordingly, we conclude that Wife’s 60(B) motion was filed within a reasonable

time and that Wife’s affidavit alleged operative facts that would warrant relief under Civ.R.

60(B)(5). As such, the trial court abused its discretion in denying Wife’s Civ.R. 60(B) motion

without first holding a hearing.
                                                 7


       {¶20} Wife’s second assignment of error is sustained.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO
       VACATE ITS PRIOR COURT ORDER PURSUANT TO [CIV.R.60(B)] AS IT
       RELATES TO THE PARTIES’ QUALIFIED DOMESTIC RELATIONS
       ORDER[.]

       {¶21} Based upon this Court’s resolution of Wife’s second assignment of error, Wife’s

first assignment of error is rendered moot.

                                                III.

       {¶22} In sustaining Wife’s second assignment of error and rendering Wife’s first

assignment of error moot, the judgment of the Summit County Court of Common Pleas, Division

of Domestic Relations, is reversed, and this cause remanded for further 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.
                                                 8


       Costs taxed to Appellee.




                                                      CARLA MOORE
                                                      FOR THE COURT




CARR, J.
CONCURS.

WHITMORE, J.
DISSENTING.

       {¶23} I respectfully dissent, as I would conclude that the language of the divorce decree

is clear, and therefore, the issue should have been raised on appeal.

       {¶24} The initial complaint for divorce was filed in January 2009. After discovery, a

settlement agreement was reached and read into the record on December 10, 2009. On February

22, 2010, the court entered a divorce decree in which it took into consideration the “various

agreements [of the parties] on the record as to the division of assets, debts and other property and

support matters.”

       {¶25} The decree detailed the parties’ retirement accounts and included a special

provision intended to protect the former spouse’s survivorship rights in any preretirement

accounts. Husband’s civil service pension was in payout status at the time of the settlement

agreement. Wife does not dispute that Husband was collecting his pension prior to the divorce.

Instead, Wife argues that the parties did not intend to distinguish between retirement accounts

that were being disbursed and those that had not yet commenced. Specifically, Wife argues, “we

both intended to give each other survivorship benefits.”
                                                9


       {¶26} Assuming Wife’s argument to be true, the language in the decree does not

properly reflect the intent of the parties, and Wife could have filed a direct appeal and produced

transcripts of the settlement agreement(s) evidencing their true intent. “A motion for relief from

judgment is not a substitute for an appeal, and errors which could have been corrected by a

timely appeal cannot be the predicate for a Civ.R. 60(B) motion for relief from judgment.” Ward

v. Hengle, 134 Ohio App.3d 347, 350 (9th Dist.1999), quoting Kelm v. Kelm, 73 Ohio App.3d

395, 399 (10th Dist.1992).

       {¶27} Wife argues that she was unaware that the language in the decree did not grant her

survivorship rights in Husband’s pension until the plan administrator rejected her request.

However, the plain language in the decree does not support her argument. The divorce decree

clearly protects the former spouse’s survivorship rights only in preretirement accounts. Wife

was fully aware that Husband’s pension was not a preretirement account. If Wife felt that the

court erred in entering language that differed from the intent of the parties, she could have

appealed from the divorce decree. Orama v. Orama, 9th Dist. No. 08CA009321, 2008-Ohio-

5188, ¶ 7 (“That a judgment contains a mistake, without more, is not a basis for relief from

judgment under Rule 60(B) of the Ohio Rules of Civil Procedure. Rather, that a judgment

contains a mistake is a proper ground for a timely appeal.”). “A party may not use a Civ.R.

60(B) motion as a substitute for a timely appeal.” Doe v. Trumbull Cty. Children Servs. Bd., 28

Ohio St.3d 128 (1986), paragraph two of the syllabus.

       {¶28} Because Wife may not use a Civ.R. 60(B) motion as a substitute for an appeal, I

would conclude that the trial court did not abuse its discretion in denying her motion to vacate

the portion of the divorce decree without a hearing. See Staats v. Finkel, 9th Dist. No. 25625,

2011-Ohio-4063, ¶ 9.
                                              10


      {¶29} For the foregoing reasons, I respectfully dissent.


APPEARANCES:

LYNDA HARVEY WILLIAMS, Attorney at Law, for Appellant.

ROBERT ROE FOX, Attorney at Law, for Appellee.
