[Cite as Barrett v. Barrett, 2017-Ohio-7562.]



                            STATE OF OHIO, MAHONING COUNTY
                                   IN THE COURT OF APPEALS
                                         SEVENTH DISTRICT

JOHN BARRETT                                      )
                                                  )
        PLAINTIFF-APPELLANT                       )
                                                  )           CASE NO. 16 MA 0025
VS.                                               )
                                                  )                  OPINION
DONA BARRETT                                      )
                                                  )
        DEFENDANT-APPELLEE                        )

CHARACTER OF PROCEEDINGS:                         Appeal from the Court of Common
                                                  Pleas, Domestic Relations Division, of
                                                  Mahoning County, Ohio
                                                  Case No. 14 DR 17

JUDGMENT:                                         Affirmed.

APPEARANCES:
For Plaintiff-Appellant                           Attorney David Engler
                                                  181 Elm Road, N.E.
                                                  Warren, Ohio 44483

For Defendant-Appellee                            Attorney Melissa Rocci
                                                  1570 South Canfield-Niles Road, B-103
                                                  Austintown, Ohio 44515

JUDGES:

Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                  Dated: September 7, 2017
[Cite as Barrett v. Barrett, 2017-Ohio-7562.]
DeGENARO, J.

        {¶1}     Plaintiff-Appellant, John Barrett, appeals the trial court's judgment
finding him in contempt and denying his Civ. R. 60(B) motion. For the following
reasons, John's assignments of error are meritless, and the judgment of the trial
court is affirmed.
        {¶2}     On September 4, 2014, John and Dona Barrett divorced. John, a
podiatrist with Ankle & Foot Care Centers, and Dona, a homemaker, were married
nearly 25 years when they submitted their agreed judgment entry. The parties have
filed multiple post-decree motions. At issue in this appeal is Dona's motion for
contempt alleging that she was to receive one-half of the gross proceeds of John's
total buyout of his business interests in Ankle & Foot Care Center. John received his
first installment for $81,538.91 and paid Dona $40,769.46. However, when John
received his second installment of $13,223.00, he failed to pay Dona any money.
        {¶3}     The Magistrate found John in contempt for failing to pay Dona her
share of the second installment; John filed objections which the trial court overruled
and adopted the Magistrate's Decision.
                                                Contempt
        {¶4}     As John's first and second assignments of error are interrelated, they
will be discussed together for clarity of analysis and assert respectively:

        The Mahoning County trial court erred in finding him in contempt for
        allegedly failing to honor provisions of the divorce decree relating to
        money paid to him to buy out his share of Ankle & Foot Care Center.

        The Mahoning County trial court erred in determining the amount he
        owed to Dona Barrett relating to money paid to him to buy out his share
        of Ankle & Foot Care Center.

        {¶5}     "On review of a trial court's determination in domestic relations cases,
appellate courts generally apply the abuse of discretion standard." Gratzmiller v.
Gratzmiller, 7th Dist. No. 06-JE-42, 2007-Ohio-4987, ¶11. However, a "[s]eparation
agreement is a contract and is subject to the same rules of construction as other
                                                                                  -2-


contracts." Polish v. Polish, 7th Dist. No. 99-CA-101, 2001-Ohio-3235, *2. "[B]ecause
judicial interpretation of contract language is a question of law, appellate courts apply
a de novo standard when conducting their review." Plymale v. Wolford, 4th Dist. No.
05 CA 5, 2005-Ohio-5224, ¶7. “[W]hen the terms of a separation agreement are clear
and unambiguous, the words used must be given their plain and ordinary meaning
and a court must give effect to the agreement's expressed terms.” Gratzmiller, ¶12,
citing Wittstein v. Wittstein, 12th Dist. No. CA2006-03-013, 2006-Ohio-6707, at ¶ 8.
       {¶6}   Contempt is the disobedience of a lawful court order. Windham Bank v.
Tomaszczyk, 27 Ohio St.2d 55, 271 N.E.2d 815 (1971), syllabus. "In civil contempt,
the purpose of the punishment is to coerce the contemnor to obey a judicial order for
the benefit of a third party." Jeffers v. Jeffers, 7th Dist. No. 07 BE 36, 2008-Ohio-
3339, ¶ 7.
       {¶7}   "In a civil contempt proceeding, the movant bears the initial burden of
proving by clear and convincing evidence that the other party violated a court order."
McCree v. McCree, 7th Dist. No. 08 MA 109, 2009-Ohio-2639, ¶ 15. "A party cannot
be found in contempt if the contempt charge is premised on a party's failure to obey
an order of the court and the order is not clear, definite, and unambiguous and is
subject to dual interpretations." Scarnecchia v. Rebhan, 7th Dist. No. 05 MA 213,
2006-Ohio-7053, ¶ 19. An order is not ambiguous because a party misunderstands
the order; it must be unclear or indefinite and subject to dual interpretations. Id.
       {¶8}   John asserts that the language of the divorce decree was ambiguous
and unclear. Dona counters that the parties agreed to the language in the separation
agreement in anticipation of John receiving varied amounts of installment payments.
The separation agreement provides:

       Husband has received of or will receive a buyout of his business
       interests in Ankle & Foot Care Centers; Stark Real Estate LLC; and The
       Surgery Center at Southwoods. Husband shall cause to be forwarded
       to wife ½ of the gross proceeds of said buyouts as they are distributed
       however if husband should owe any money in said buyouts he shall pay
                                                                                   -3-


       the same and hold wife harmless therefrom except as specifically
       mentioned herein.

       At the time of this agreement the amounts paid on the aforementioned
       buyouts are yet to be determined save the Ankle & Foot Care Centers
       which is approximately $244,677.00 or a greater number. There is due
       and owing said company for draws thereon the approximate amount of
       $35,000.00 $25,000.00 of which shall come from Husband's share and
       said buyout and $10,000.00 of which shall come from wife's portion of
       said buyout. Regardless of the amount owing to said company wife's
       portion shall be no more than $10,000.00.

       {¶9}    The separation agreement stated that John would pay Dona one-half
of the gross proceeds of said buyouts as they are distributed. John received his first
installment of the buyout for $81,538.91, and he paid Dona one-half of this amount.
For the second installment, due to draws from partnership profits totaling $68,305.00,
John only received $13,223.00. John admitted that he did not pay any money to
Dona. There is no ambiguity. John understood the terms of the agreement as he
made the first payment. Accordingly, the trial court did not err in finding John in
contempt for failing to honor the terms of the separation agreement because he did
not pay Dona her share of the proceeds from the second payment. As such, John's
first two assignments of error are meritless.
                                      Civ. R. 60(B)
       {¶10} In his final assignment of error, John asserts:

       The Mahoning County trial court erred in overruling his Motion for Relief
       from judgment.

       {¶11} Pursuant to Civ. R. 60(B), the Court has the authority to vacate a final
judgment. "To prevail on a motion for relief from judgment under Civ. R. 60(B), the
movant must demonstrate: (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
                                                                             -4-


Civ. R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time,
and, where the grounds for relief are Civ. R. 60(B)(1),(2), or (3), not more than one
year after the judgment, order or proceeding was entered or taken." GTE Automatic
Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976),
syllabus.
       {¶12} "A meritorious defense exists when the movant specifically alleges
operative facts that support a defense to the judgment." Tabor v. Tabor, 7th Dist. No.
02-CA-73, 2003-Ohio-1432, ¶ 33. "The movant bears the burden of demonstrating a
meritorious defense." Id. In order to satisfy that burden, the movant must merely
allege operative facts which would support a meritorious defense, not prove that he
or she will prevail on that defense. Id.
       {¶13} John maintains that the divorce decree was inelegantly drafted and
does not reflect the intention of the parties and is ambiguous. As discussed above,
this is not the case. As such, John does not allege a meritorious defense and none
can be found in the record.
       {¶14} Turning to the second GTE prong, John is relying on Civ.R. 60(B)(1),
mistake, inadvertence, surprise or excusable neglect; Civ.R. 60(B)(2) newly
discoverable evidence by which due diligence could not have been discovered in
time to move for a new trial; and Civ. R. 60(B)(5), any other reason justifying relief
from judgment.
       {¶15} In order to obtain relief on basis of mistake, the court must find "a
mutual mistake shared by both parties as to a material fact in the case." Smith v.
Smith, 8th Dist. No. 83275, 2004-Ohio-5589, ¶ 17. The Ohio Supreme Court
recognized that mutual mistake may be grounds for rescission of a contract if it
involves a material part of the contract and the complaining party is not negligent in
failing to discover the mistake. Reilley v. Richards, 69 Ohio St.3d 352, 352-53, 632
N.E.2d 507 (1994).      John does not identify a mutual mistake and none can be
determined from the record.
       {¶16} To qualify as newly discovered as contemplated under Civ.R. 60(B)(2),
the evidence must not have been discoverable by due diligence within the time limits
                                                                                 -5-


set forth for a motion for a new trial. See Cuyahoga Support Enforcement Agency v.
Guthrie, 84 Ohio St.3d 437, 442, 705 N.E.2d 318 (1999); Smith v. Smith, 8th Dist.
No. 83275, 2004-Ohio-5589, ¶ 16. The amount John actually owed is not newly
discovered evidence. The parties were aware he would be receiving future payments
and the amounts would vary, and they provided for it in the separation agreement.
       {¶17} To qualify for relief under Civ.R. 60(B)(5), which provides "any other
reason justifying relief," the Ohio Supreme Court has stressed that Civ.R. 60(B)(5) is
"a catch-all provision reflecting the inherent power of a court to relieve a person from
the unjust operation of a judgment, but it is not to be used as a substitute for any of
the other more specific provisions of Civ.R. 60(B)." Caruso-Ciresi, Inc. v. Lohman, 5
Ohio St.3d 64, 448 N.E.2d 1365 (1983), syllabus. John doesn't specifically identify a
reason justifying relief under Civ. R. 60(B)(5). It is not this Court's duty to search the
record for evidence to support an argument for an alleged error; it is inappropriate for
us to formulate legal arguments in support of a party's appeal. See State v. Tuck, 146
Ohio App.3d 505, 2001-Ohio-7017, 766 N.E.2d 1065, ¶ 19 (9th Dist.).
       {¶18} Finally, Civ.R. 60(B)(1) and (2) require that the motion be filed within
one year of the judgment. The motion was filed more than one year after the divorce
decree and is thus untimely. For the foregoing reasons, the trial court did not abuse
its discretion in denying John's Civ. R. 60(B) motion.
       {¶19} In sum, as all three of John's assignments of error are meritless, the
judgment of the trial court is affirmed.



Waite, J., concurs.

Robb, P. J., concurs.
