[Cite as Kane v. Kane, 2018-Ohio-3971.]


                                  IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     GEAUGA COUNTY, OHIO


CHARLES P. KANE,                                  :        OPINION

                 Plaintiff-Appellant,             :
                                                           CASE NO. 2017-G-0145
        - vs -                                    :

MARYLU A. KANE,                                   :

                 Defendant-Appellee.              :


Appeal from the Geauga County Court of Common Pleas, Case No. 2013 DC 000971.

Judgment: Affirmed.


Joyce E. Barrett and James P. Reddy, Jr., 55 Public Square, Suite 1260, Cleveland,
OH 44113 (For Plaintiff-Appellant).

Marylu A. Kane, pro se, 3648 Lexington Court, Westlake, OH 44145 (Defendant-
Appellee).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Charles P. Kane, appeals from the judgment of the Geauga

County Court of Common Pleas, denying his Civ.R. 60(B) motion for relief from

judgment without a hearing.           At issue is whether the trial court erred in summarily

overruling his motion, which sought relief from judgment of an order to pay spousal

support journalized in the parties’ final decree of divorce.          Pursuant to the Ohio

Supreme Court’s decision in Morris v. Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, we

affirm the trial court.
       {¶2}   The parties were divorced by final decree on November 9, 2015. The

parties, via separation agreement, mutually agreed on appellant’s spousal support

obligation and this agreement was incorporated into the final decree. The agreement

provides:

       {¶3}   Husband shall pay directly to Wife, as and for spousal support, the
              sum of Four Thousand Seven Hundred Fifty Dollars ($4,750.00) per
              month, commencing November 1, 2015, and continuing for a period
              of seventy-one (71) additional months, subject to earlier termination
              upon the death of the Husband or Wife, Wife’s remarriage, or
              Wife’s cohabitation with an unrelated person * * * Husband and
              Wife agree that no court of competent jurisdiction shall retain
              jurisdiction to modify either the amount or duration [of] this spousal
              support award.

       {¶4}   The divorce decree expressly reiterated the substance of the foregoing

agreed-upon spousal-support obligation, including the explicit declination of jurisdiction

to modify the obligation.

       {¶5}   On November 8, 2016, appellant filed a motion for relief from judgment,

pursuant to Civ.R. 60(B)(1), (2), (4), and (5), requesting the court to vacate or modify

the spousal-support and property-division provisions of the decree. Appellant argued,

due to the profound financial downturn of his two businesses, he was unable to meet his

obligations. He claimed his financial troubles were caused by the emergence of two

competitor businesses in the immediate vicinity of his businesses. He therefore alleged

compliance with the orders was impossible.        Appellant requested a hearing at the

court’s earliest convenience.

       {¶6}   A hearing was scheduled for January 4, 2017, and continued, at

appellee’s request, until February 22, 2017.        Meanwhile, appellee moved for an

“emergency temporary restraining order/escrow of funds.”         In the motion, appellee

sought a restraining order preventing appellant from dissipating proceeds from a real


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estate sale upon which he was closing.            Appellee alleged the proceeds would be

approximately $235,000 and appellee claimed, without the order, appellant could

expend the funds and deprive her of her support. The magistrate granted the temporary

order and the matter was scheduled for hearing on February 22, 2017.

         {¶7}   On February 21, 2017, appellant filed a voluntary dismissal of his Civ.R.

60(B) motion. After a hearing on appellee’s motion for a restraining order, the court

enjoined appellant from disposing of $100,000 of the proceeds from the real estate sale

and ordered appellant to convey that amount to appellee. The court dissolved the order

restraining appellant from obtaining the balance of the proceeds.

         {¶8}   On October 26, 2017, appellant re-filed his Civ.R. 60(B) motion, arguing

the same points. And, on November 28, 2017, the trial court overruled the motion

without a hearing. Appellant appeals from this judgment, assigning the following as

error:

         {¶9}   “The trial court erred and abused its discretion when it failed to grant

appellant a hearing on his motion for relief from judgment and summarily overruled it.”

         {¶10} 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 proceedings was entered or taken.” Argo Plastic

Products Co. v. Cleveland, 15 Ohio St.3d 389, 391 (1984), citing GTE Automatic

Electric v. ARC Industries, 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. If

any prong of this requirement is not satisfied, relief shall be denied. Argo, supra, at 391.


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        {¶11} A trial court is not required to conduct a hearing on a Civ.R. 60(B) motion

unless the motion and accompanying materials contain operative facts to support relief.

Kay v. Glassman, Inc., 76 Ohio St.3d 18 (1996). We review a trial court’s decision

granting or denying a party's motion for relief from judgment for an abuse of

discretion. Strack v. Pelton, 70 Ohio St.3d 172, 174 (1994).

        {¶12} Appellant sought relief, pursuant to Civ.R. 60(B)(1), (2), (4), and (5).

Although appellant’s first motion for relief, which he dismissed, was filed within a year of

the final decree, his second motion was filed well beyond a year from that order.

Accordingly, appellant was precluded from seeking relief under Civ.R. 60(B)(1) and (2).

        {¶13} Civ.R. 60(B)(4) and (5) provide that relief may be granted if the motion

was filed in a reasonable time and:

        {¶14} “(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.”

        {¶15} In his motion and his appellate brief, appellant emphasizes that the

judgment at issue is no longer equitable due to impossibility of compliance. Appellant

takes specific issue with his spousal support obligation.1 Notwithstanding appellant’s

allegations, R.C. 3105.18(E)(1) provides:

        {¶16} (E) If * * * a continuing order for periodic payments of money as
              spousal support is entered in a divorce or dissolution of marriage

1. Appellant’s motion also purported to seek relief from the property division. He did not challenge with
particularity which aspect of the property division he felt was inequitable. Similarly, he fails to provide any
such detail in his appellate brief. On this basis alone, the issue lacks merit. Regardless, R.C. 3105.171(I)
provides: “A division or disbursement of property * * * is not subject to future modification by the court
except upon the express written consent or agreement to the modification by both spouses.” No such
agreement to modification was entered by both spouses. Thus, appellant’s nominal request to seek relief
from the property division would lack merit even if he made a substantive argument on the issue.


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              action that is determined on or after January 1, 1991, the court that
              enters the decree of divorce or dissolution of marriage does not
              have jurisdiction to modify the amount or terms of the alimony or
              spousal support unless the court determines that the circumstances
              of either party have changed and unless one of the following
              applies:

       {¶17} (1) In the case of a divorce, the decree or a separation agreement
             of the parties to the divorce that is incorporated into the decree
             contains a provision specifically authorizing the court to modify the
             amount or terms of alimony or spousal support.

       {¶18} Accordingly, a trial court does not have continuing jurisdiction to modify a

spousal support order unless the court specifically reserves jurisdiction in the divorce

decree. As discussed above, there was no jurisdictional reservation.

       {¶19} Furthermore, in Morris, supra, the Ohio Supreme Court held “that a trial

court does not have jurisdiction under Civ.R. 60(B) to vacate or modify an award of

spousal support in a decree of divorce or dissolution when the decree does not contain

a reservation of jurisdiction to modify the award of spousal support pursuant to R.C.

3105.18(E).” Morris, supra, at ¶2.

       {¶20} In Morris, supra, Mr. Morris sought relief from his spousal support

obligation pursuant to Civ.R. 60(B)(4) and (5). The trial court concluded relief was not

available because the decree did not afford the trial court continuing jurisdiction to

modify the award.    The Second Appellate District affirmed the judgment, concluding

R.C. 3105.18(E) established specific jurisdictional preconditions for modification which

were not present in the separation agreement, which was incorporated into the decree

of dissolution.

       {¶21} The Ohio Supreme Court accepted jurisdiction of a certified conflict on the

following issue: “Does a trial court have jurisdiction under Civ.R. 60(B) to vacate or

modify an award of spousal support in a decree of divorce or dissolution where the


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decree does not contain a reservation of jurisdiction to modify the award of spousal

support pursuant to R.C. 3105.18(E)?” Morris, supra, at ¶1. The Court answered the

certified question in the negative, concluding Civ. R. 60(B) may not be used to modify

an award of spousal support outside the parameters of R.C. 3105.18(E): The Court

observed:

       {¶22} Our precedent * * * establishes that substantive law controls the
             issue of when a trial court has jurisdiction to modify a spousal-
             support award contained in a decree of divorce or dissolution. R.C.
             3105.18(E) is “‘that body of law which creates, defines and
             regulates the rights of the parties,’” to modify an award of spousal
             support. Havel [v. Villa St. Joseph], 131 Ohio St.3d 235, 2012-Ohio-
             552, at ¶16, quoting Krause v. State, 31 Ohio St.2d 132 (1972),
             paragraph one of the syllabus, overruled on other grounds,
             Schenkolewski v. Cleveland Metroparks Sys., 67 Ohio St.2d 31
             (1981).

      {¶23} In R.C. 3105.18(E), the General Assembly has established the
            limits of a trial court's jurisdiction to modify an award of spousal
            support. And a party’s request for modification falls within those
            statutory limits only if the parties agree or the court orders that
            jurisdiction be reserved. In other words, the trial court must first
            determine whether the decree of divorce or dissolution contains a
            reservation of jurisdiction. If the trial court lacks jurisdiction to
            modify, then the inquiry of the court ends there. To permit a trial
            court to exercise jurisdiction on the authority of Civ.R. 60(B) in the
            absence of a reservation of jurisdiction would make the force of the
            procedural rule greater in scope than the substantive right the
            General Assembly established in R.C. 3105.18(E). Because Civ.R.
            60(B) is a procedural rule, it cannot override the substantive law
            of R.C. 3105.18(E). See Ohio Constitution, Article IV, Section 5(B).
            Morris, supra, at ¶¶ 56–57.

      {¶24} The parties agreed, via their separation agreement, to a spousal support

award that could not be modified by the court. And the trial court expressly stated, in

the final divorce decree, that it did not possess continuing jurisdiction to modify that

award. Accordingly, pursuant to Morris, the trial court lacked jurisdiction to modify the

order via Civ.R. 60(B).



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       {¶25} Notwithstanding the Supreme Court’s statement of law in Morris, which we

are bound to follow, we note its application could be problematic. For example, a party

could engage in fraud or misrepresentation in the negotiation of a spousal support

agreement. And if the agreement or decree did not include a jurisdictional reservation,

the judgment still survives, and the defrauded party will remain bound by the opposing

party’s unlawful conduct. In this respect, completely depriving a trial court of subject

matter jurisdiction to consider a motion for relief from a spousal support obligation,

pursuant to Civ.R. 60(B), where there is no jurisdictional reservation to modify the

obligation, is troublesome and, under circumstances not present in this case,

fundamentally unjust. Thus, unless a party has a substantive legal right to be free from

fraud or other unlawful conduct, a trial court would be without power to relieve a party

from a spousal support judgment obtained through such insidious means unless a

jurisdictional reservation exists.

       {¶26} Notwithstanding this point, appellant could allege no operative facts to

support relief from judgment in this matter. We therefore hold the trial court did not err

in denying appellant relief from judgment without a hearing.

       {¶27} Appellant’s assignment of error is without merit.

       {¶28} For the reasons discussed in this opinion, the judgment of the Geauga

County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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