Brewer v. Brewer, 2010 Ohio 1319 (Ohio App. 3/30/2010)

• Decision Date: 30 March 2010
• Docket Number: No. 09AP-146.,09AP-146.
• Citation: Brewer v. Brewer, 2010 Ohio 1319 (Ohio App. 3/30/2010), 2010 Ohio 1319, No. 09AP-146. (Ohio App. Mar 30, 2010)
• Parties: Earl T. Brewer, Plaintiff-Appellant, v. Karen J. Brewer, Defendant-Appellee.
• Court: Ohio Court of Appeals

Page 1

2010 Ohio 1319

Earl T. Brewer, Plaintiff-Appellant, v.Karen J. Brewer, Defendant-Appellee.

No. 09AP-146.

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on March 30, 2010.

Appeal from the Franklin County Court of Common Pleas, Division of Domestic Relations, C.P.C. No. 05DR-04-1615.

Christopher M. Cooper, and Paul E. Morrison, for appellant.

Ted Scott, for appellee.

DECISION

CONNOR, J.

{¶1}Plaintiff-appellant, Earl T. Brewer("appellant"), appeals from a judgment entry and decree of divorce entered by the Franklin County Court of Common Pleas, Division of Domestic Relations, in accordance with an agreed entry signed by the parties and approved by the trial court.For the following reasons, we affirm the judgment of the trial court.

{¶2} On April 26, 2005, appellant instituted this divorce action against defendant-appellee, Karen J. Brewer("appellee").The parties participated in settlement negotiations regarding the distribution of marital assets, which is evidenced by the divorce settlement memorandum filed on October 16, 2007("settlement memorandum").This settlement memorandum indicated that appellee would be entitled to one-half of appellant's pension, but the amount received would be offset by one-half of appellee's social security account.Thereafter, on December 13, 2007, the parties approached the court to request that the matter be scheduled for a contested trial.As a result, the trial court included a note in the record providing: "Case settled 10/16/07, but settlement fell apart."The trial court therefore set the matter for a contested trial on February 14, 2008.

{¶3} In the time leading up to the trial date, the parties continued to negotiate a settlement.Then, on February 14, 2008, the parties appeared before the trial court and signed an agreed entry stating the terms of the divorce and property distribution.The trial court approved the entry and reduced it to judgment.

{¶4} Despite the fact that appellant was represented by counsel, appellant was apparently unaware that the agreed judgment entry lacked any reference to an offset of appellant's pension with appellee's social security account.As a result, on June 23, 2008, appellant filed a Civ.R. 60(A)motion to vacate the judgment.On June 26, 2008, appellee filed a memorandum contra appellant's Civ.R. 60(A) motion.

{¶5} On July 25, 2008, the trial court issued a decision setting the matter for a Civ.R. 60(B) hearing.In this decision, the court outlined the requirements associated with Civ.R. 60(B).

{¶6}The trial court presided over the hearing on October 7, 2008.On January 12, 2009, the court issued its decision denying appellantCiv.R. 60(B) relief.Appellant timely appealed and raises the following assignments of error:

[I.]THE TRIAL COURT ERRED IN DEEMING APPELLANT'S CIV.R. 60(A) MOTION[AS] A CIV.R. 60(B) MOTION. THE[CIV.R.]60(B) MOTION WAS NOT PROPERLY BEFORE THE TRIAL COURT.

[II.] ALTHOUGH APPELLANT'S[CIV.R.]60(B) MOTION WAS NOT PROPERLY BEFORE THE TRIAL COURT, THE TRIAL COURT ERRED IN ITS DECISION AND ENTRY ON PLAINTIFF'S[CIV.R.]60(B) MOTION IN NOT APPLYINGR.C. 3105.171 AS REQUIRED IN THE DIVISION OF MARITAL ASSETS.

[III.] THE TRIAL COURT ERRED IN NOT APPLYING A SOCIAL SECURITY OFFSET IN ITS DECISION AND ENTRY ON PLAINTIFF'S[CIV.R.]60(B) MOTION AS ALLOWED FOR AN EQUITABLE DIVISION OF MARITAL ASSETS IN THE NEVILLE CASE.

[IV.] THE TRIAL COURT ERRED IN ITS DECISION AND ENTRY ON PLAINTIFF'S[CIV.R.]60(B) MOTION IN NOT SETTING ASIDE THE AGREED ENTRY AS A CONTRACT THAT IS UNENFORCEABLE FOR EQUITABLE AND PUBLIC POLICY REASONS.

{¶7} Before analyzing the substantive assignments of error, we must first address appellee's motion to strike evidence not in the record, which was filed with this court on June 16, 2009.Appellant filed an untimely "contramotion" on July 13, 2009.¹Despite being untimely filed, we will consider the arguments presented in appellant's filing in the interest of justice.

{¶8} In appellee's motion, she argues that all exhibits and testimony not previously offered to the trial court should be stricken from the record on appeal.She specifically references exhibit Nos. 3, 4, 15, and 16 to appellant's brief.According to appellant, exhibit Nos. 3 and 4 were already a part of the appellate record because appellant had attached these as exhibits to his Civ.R. 60(A) motion before the trial court.Further, appellant argues that exhibit Nos. 15 and 16 should not be stricken because they are tax forms that would have been discoverable and admissible in the contested trial.

{¶9} Under OhioApp.R. 9(A), the record on appeal consists of:

The original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases.

However, this rule "cannot be used to add collateral, albeit possibly important and illuminating, documents to a record."In re Conservatorship of Ahmed, 7th Dist. No. 01 BA 13, 2003-Ohio-3272, ¶53.

{¶10} Given that appellant's Civ.R. 60(A) motion included exhibit Nos. 3 and 4 as attachments and appellee failed to object to these attachments before the trial court, these exhibits are already a part of the appellate record.Indeed, the trial court decision even makes a general reference to the previous versions of the proposed settlement.(Trial court's decision on appellant's Civ.R. 60(B), at 2.)Accordingly, we overrule in part appellee's motion to strikeappellant's exhibits as it regards exhibit Nos. 3 and 4.However, with regard to exhibit Nos. 15 and 16, merely because an exhibit would have been admissible at trial does not permit a party to introduce new evidence into the appellate record.See In re Conservatorship of Ahmed.Accordingly, we sustain in part appellee's motion to strikeappellant's exhibits as it regards exhibit Nos. 15 and 16.

{¶11} In his first assignment of error, appellant argues that the trial court erred by converting his Civ.R. 60(A) motion into a Civ.R. 60(B) motion.He argues that he was not prepared to argue the elements of a Civ.R. 60(B) motion, which are different than a Civ.R. 60(A) motion.We find these arguments to be unpersuasive.

{¶12} First, the trial court issued its decision on July 25, 2008 setting appellant's Civ.R. 60(B) motion for hearing.It further outlined the requirements under Civ.R. 60(B).Accordingly, we find that appellant had notice of the trial court's intention to treat his Civ.R. 60(A) motion as a Civ.R. 60(B) motion.

{¶13} Next, we consider the substance of appellant's argument.The differences between the functions of Civ.R. 60(A)andCiv.R. 60(B) are well-established:

Civ.R. 60(A) permits a trial court, in its discretion, to correct clerical mistakes that are apparent on the record, but does not authorize a trial court to make substantive changes in judgments.The term "clerical mistake" refers to a mistake or omission, mechanical in nature and apparent on the record that does not involve a legal decision or judgment.

(Internal citations omitted.)Atwater v. Delaine,155 Ohio App.3d 93, 2003-Ohio-5501, ¶11.In Atwater, the Eighth Appellate District held that a change in the classification of an award of attorney fees and other equitable property to "spousal support" amounted to a substantive change, which is governed by Civ.R. 60(B).Id. at ¶12.Additionally, this court has previously held:

[T]he basic distinction between clerical mistakes that can be corrected under Civ.R. 60(A) and substantive mistakes that cannot be corrected is that the former consists of "blunders in execution" whereas the latter consists of instances where the court changes its mind, either because it made a legal or factual mistake in making its original determination, or because, on second thought, it has decided to exercise its discretion in a different manner.

Wardeh v. Altabchi,158 Ohio App.3d 325, 2004-Ohio-4423, ¶10, quotingKuehn v. Kuehn(1988), 55 Ohio App.3d 245, 247.In Wardeh, the Civ.R. 60movant conceded that by deleting a paragraph from a civil protection order, the order was substantively changed.Id.{¶14} In the instant matter, we have no such concession.Rather, appellant notes that the agreed judgment entry failed to include a provision offsetting appellant's pension with appellee's social security account.By filing a Civ.R. 60(A) motion, appellant argues that the addition of a provision to the judgment that offsets portions of the parties' pensions constitutes a clerical, rather than substantive, change.We disagree.

{¶15}Appellant cites the settlement memorandum, in which the parties apparently agreed to offset.Again, however, subsequent to this settlement memorandum, the parties approached the court to schedule a contested trial because the settlement had failed.As a result, we see no mechanical mistake apparent in the record.See Atwater.

{¶16} Further, in the agreed judgment entry, the parties agreed to the terms of the property distribution.Notably absent from that agreement was any specific mention of an offset of appellant's pension with appellee's social security account.Therefore, based upon the substance of the agreed judgment entry, the parties did not agree to such an offset.As a result, the addition of a provision regarding offset would undeniably amount to a substantive change.As a result, the trial court could have simply overruled appellant's Civ.R. 60(A) motion because it lacked merit.Instead, however, the trial court graciously converted appellant's Civ.R. 60(A) motion to accomplish that which appellant intended for it to do, that is, to make a substantive change to the agreed judgment entry.

{¶17} For these reasons, Civ.R. 60(B) governs the issues presented herein.The trial court did not err in converting appellant's Civ.R. 60(A) motion to a Civ.R. 60(B) motion.We...