Coulson v. Coulson

• Decision Date: 18 May 1983
• Docket Number: No. 82-525,82-525
• Citation: 448 N.E.2d 809,5 Ohio St.3d 12,5 OBR 73
• Parties: , 5 O.B.R. 73 COULSON, Appellee, v. COULSON, Appellant.
• Court: Ohio Supreme Court

Page 12

5 Ohio St.3d 12

448 N.E.2d 809, 5 O.B.R. 73

COULSON, Appellee, v. COULSON, Appellant.

No. 82-525.

Supreme Court of Ohio.

May 18, 1983.

Syllabus by the Court

1. Pursuant to Civ.R. 60(B)(5), a court in appropriate circumstances may vacate a judgment vitiated by a fraud upon the court.

2. When an attorney files and signs a divorce complaint, purporting to represent the plaintiff in the action even though he drafted the complaint and accompanying separation agreement at the direction of and upon the terms dictated by the defendant in the same action, and he represents to the court that he is plaintiff's counsel and that the separation agreement, which he had not examined for fairness and equity, is fair and equitable, and the court, in reliance on these representations, proceeds to approve the divorce and incorporate the separation agreement into the judgment, which it would not have done had it known of the arrangement between the attorney and the defendant, the attorney perpetrates a fraud upon the court, and a trial court does not abuse its discretion in granting relief from judgment pursuant to Civ.R. 60(B)(5).

The parties to this appeal were married in 1963 and had two children during their marriage. In 1965, appellant, Robert A. Coulson, opened a sandwich shop, which evolved into the "Mr. Hero" chain of restaurants and an associated franchise operation. Appellee, Joan Coulson, worked in the "Mr. Hero" stores.

In July 1975 appellant informed his wife that he was seeing another woman. A day or two later the parties held some discussions about dividing their property. Thereafter, appellant contacted his corporate attorney, Leonard Saltzer, and asked Saltzer to draft a separation agreement and handle the divorce. Saltzer drafted an agreement based on terms dictated to him by appellant. The parties met briefly in Saltzer's office on July 31, 1975 and signed the agreement. The next day Saltzer filed a complaint for divorce. In the complaint Saltzer represented himself as "Attorney for Plaintiff [appellee herein]." In October 1975 Saltzer drafted and filed appellant's answer. The answer was signed by Saltzer's office associate even though the associate had not been retained by appellant to represent him in the divorce proceedings. The answer was subsequently withdrawn after Saltzer informed the court that the parties had reached an agreement. On January 21, 1976 a hearing on the divorce was held before a referee. Appellee attended the hearing accompanied by Saltzer, who represented himself as appellee's attorney. During the hearing the referee asked appellee if the settlement was fair and equitable. Appellee thereupon turned and asked Saltzer if it was and Saltzer replied, "Yes, your Honor, it's fair and equitable." On February 10, 1976, appellee was granted a divorce from appellant and the separation agreement was incorporated into the judgment.

Appellant continued to spend alternate nights with appellee in the marital residence for some time after their divorce. During this time he contributed to the parties' joint checking account and paid for general household expenses. Appellant eventually moved out of the house and stopped making the aforementioned payments. In February 1978 appellee filed two separate motions, seeking relief from judgment for procedural errors, which motions were overruled. On May 1, 1978, appellee filed a third motion for relief from judgment pursuant to Civ.R. 60(B)(5), alleging fraud upon the court. The court granted appellee's Civ.R. 60(B)(5) motion on June 3, 1981 after a full hearing.

Appellant appealed to the court of appeals, which affirmed the trial court in a split decision. The majority below held that "[t]he conduct of appellant and Mr. Saltzer rose to the level of fraud upon the court * * *. The court was misled into believing that Mrs. Coulson initiated the divorce proceedings, was represented by Mr. Saltzer, and that the settlement agreement reached between the parties was fair and equitable. Yet the record reveals that Mr. Saltzer (1) was contacted and paid by Mr. Coulson who wanted a divorce * * *, (2) acted as a mere scrivener * * *, (3) did not actually represent either party * * *, (4) never advised Mrs. Coulson * * *, (5) never advised the court of his 'limited representation' * * *, and (6) never analyzed the proposed settlement terms for fairness * * *. Thus, his misrepresentations to the court prevented appellee from presenting her case, and, as an officer of the court, his conduct 'prevented the judicial system from functioning in the customary manner.' " The court further held that res judicata did not bar the court "from entertaining appellee's third motion which contained different facts and grounds for relief."

Judge Thomas J. Parrino dissented. In his view, the fraud, if any, "was perpetrated upon the plaintiff [appellee] and not upon the court. As such, under the provisions of Civ.R. 60(B)(3), plaintiff was required to file her motion for relief from judgment within one year * * *." Judge Parrino would alternatively have found the third motion barred by principles of res judicata.

The court of appeals, finding its judgment to be in conflict with the judgment of the Court of Appeals for Franklin County in Cautela Bros. v. McFadden (1972), 32 Ohio App.2d 329, 291 N.E.2d 539 , and the judgment of the Court of Appeals for Clinton County in Laughlin v. Hibbard (1974), 70 O.O.2d 194, Ohio App., 328 N.E.2d 827, certified the record of the case to this court for review and final determination.

Thomas A. Kondzer and Walter T. Spalding, Jr., Cleveland, for appellee.

Garofoli, Kraus, Hill, Roth & Bartunek, Anthony J. Garofoli, William J. Kraus and Gary S. Okin, Cleveland, for appellant.

SWEENEY, Justice.

The question presented in this appeal is whether the trial court abused its discretion in granting appellee relief from judgment pursuant to Civ.R. 60(B)(5). Civ.R. 60(B) states as follows:

"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 had 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. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.

"The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules."

The "any other reason" asserted by appellee under Civ.R. 60(B)(5) was that "the attorneys perpetrated such open and flagrant fraud upon the Court that no justice could have been rendered * * *."

Appellant contends "that 'fraud' be it denominated 'fraud upon the court' or 'fraud in taking judgment' is a ground for relief within the purview of Civil Rule 60(B)(3) [which must be brought within one year] and not Civil Rule 60(B)(5)." This contention is without merit.

The Staff Notes to Civ.R. 60(B) specifically negate appellant's contention. The drafters state as follows:

" * * * a court might utilize the catch-all provision [60(B)(5) ] to vacate a judgment vitiated by a fraud upon the court. Fraud upon the court differs from Rule 60(B)(3), fraud or misrepresentation by an adverse party. * * * "

"Fraud upon the court" is an elusive concept. "The distinction between 'fraud' on the one hand and 'fraud on the court' on the other is by no means clear, and most attempts to state it seem to us to be merely compilations of words that do not clarify." Toscano v. Commr. of Internal Revenue (C.A.9, 1971), 441 F.2d 930, 933.

One commentator, however, had provided this definition: " 'Fraud upon the court' should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by the officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. Fraud, inter partes, without more, should not be a fraud upon the court, but redress should be left to a motion under 60(b)(3) or to the independent action." 7 Moore's Federal Practice (2 Ed.1971) 515, Paragraph 60.33. See, also, Serzysko v. Chase Manhattan Bank (C.A.2, 1972), 461 F.2d 699; Kupferman v. Consolidated Research & Mfg. Corp. (C.A.2, 1972), 459 F.2d 1072, 1078; Kenner v. Commr. of Internal Revenue (C.A.7, 1968), 387 F.2d 689, 691. Accord Hartford v. Hartford (1977), 53 Ohio App.2d 79, at pages 83-84, 371 N.E.2d 591.

It is generally agreed that " * * * [a]ny fraud connected with the presentation of a case to a court is a fraud upon the court, in a broad sense." 11 Wright & Miller, Federal Practice and Procedure (1973) 253, Section 2870. Thus, in the usual case, a party must resort to a motion under Civ.R. 60(B)(3). Where an officer of the court, e.g., an attorney, however, actively participates in defrauding the court, then the court may entertain a Civ.R. 60(B)(5) motion for relief from judgment. See Toscano, supra.

Appellant contends in his first proposition of law that "[a] trial court abuses its discretion in granting an evidentiary hearing on a motion for relief from judgment pursuant to Civil Rule 60(B) of the Ohio Rules of Civil Procedure and in granting the motion where the evidentiary materials...