LaCourse v. LaCourse

• Court: Ohio Court of Appeals
• Writing for the Court: ZMUDA, J.
• Citation: LaCourse v. LaCourse, 2023 Ohio 972, L-22-1092 (Ohio App. Mar 24, 2023)
• Docket Number: L-22-1092
• Decision Date: 24 March 2023
• Parties: Tonya LaCourse Appellee v. John LaCourse Appellant

1

2023-Ohio-972

Tonya LaCourse Appellee v. John LaCourse Appellant

No. L-22-1092

Court of Appeals of Ohio, Sixth District, Lucas

March 24, 2023

Trial Court No. DR0201900647

Martin E. Mohler, for appellee.

Jeremy W. Levy and Brianna L. Stephan, for appellant.

DECISION AND JUDGMENT

ZMUDA J.

I. Introduction

{¶ 1} Appellant, John LaCourse, appeals the March 15 2022 judgment of the Lucas County Court of Common Pleas, Domestic Relations Division, denying his motion to vacate the February 16, 2022 consent judgment entry that amended the terms of the parties' previously-granted divorce decree. For the following reasons, we affirm the trial court's judgment.

A. Facts and Procedural Background

{¶ 2} Appellee, Tonya LaCourse, filed a complaint for divorce from appellant on September 9, 2019. On May 24, 2021, the trial court granted the parties a divorce through a final judgment entry. In granting the divorce, the trial court found "that the parties have settled all their rights and interests arising out of and relating to division of property * * * and after reviewing the agreement of the parties find same to be fair and equitable and hereby approves same." Relevant to the present appeal, the parties agreed that appellant would "retain as his own, free from any claim on the part of [appellee] all right, title, and interest in and to his * * * pension plans, and other retirement plans in his possession[.]" Both parties and their respective counsel signed the divorce decree and the trial court granted them their divorce through a consent judgment entry.

{¶ 3} On November 23, 2021, appellee filed a motion for relief from that judgment pursuant to Civ.R. 60(B). In her motion, appellee alleged that appellant had concealed an employer pension plan prior to settling their divorce action. This, she argued, entitled her to relief from the May 24, 2021 judgment granting their divorce pursuant to Civ.R. 60(B)(1), (2), (3), and (5), because the pension plan should have been included in the parties' division of marital property agreement. Appellant did not timely file a response to appellee's motion. Instead, the record reflects that the parties engaged in settlement discussions aimed at resolving the dispute. Those discussions ultimately resulted in the parties consenting to the entry of a February 16, 2022 nunc pro tunc judgment granting appellee "one half of the marital value of Defendant's pension plans and retirement plans[.]" The consent entry was signed by counsel for both parties.

{¶ 4} On March 1, 2022, appellant filed a motion for leave to file an opposition to appellee's already-granted Civ.R. 60(B) motion for relief from judgment. The motion for leave sought only to file an opposition but did not identify a reason he had not timely responded. On March 2, 2022, appellant filed a motion to vacate the February 16, 2022 consent judgment. In that motion, appellant argued that his prior counsel consented to the February 16, 2022 judgment entry without his authorization. Appellant submitted an affidavit identifying an alleged breakdown in communication with his counsel in support of his motion. Appellee did not file an opposition to either motion.

{¶ 5} On March 3, 2022, the trial court denied appellant's motion for leave to file his opposition to appellee's motion for relief, finding that it had been rendered moot by the prior granting of appellee's motion. On March 15, 2022, the trial court denied appellant's motion to vacate the February 16, 2022 consent judgment entry granting appellee's motion. In denying the motion to vacate, the trial court construed appellant's allegations as a motion for relief from judgment pursuant to Civ.R. 60(B). The trial court held that allegations that trial counsel consented to a judgment entry without their client's authorization does not provide grounds for relief from judgment under Civ.R. 60(B)(1) and denied appellant's motion.

B. Assignments of Error

{¶ 6} Appellant timely appealed and asserts the following errors for our review:

1. The trial court's lack of subject matter jurisdiction to modify a final property division rendered the February 16, 2022 order voidable.

2. Appellant alleged a meritorious defense and demonstrated an entitlement to relief under at least one of the grounds enumerated by Civ.R. 60(B).

II. Law and Analysis

A. The trial court had subject matter jurisdiction to modify the parties' divorce decree pursuant to R.C. 3105.171.

{¶ 7} In his first assignment of error, appellant argues that the trial court lacked subject matter jurisdiction to modify the parties' May 24, 2021 divorce decree. Appellant makes two arguments in support of his assigned error. First, he argues that because the trial court's judgment resulted in a substantive change to the prior judgment and was, therefore, not subject to modification through a nunc pro tunc order. Second, he alleges that appellee's filing of a Civ.R. 60(B) motion for relief from judgment from that decree, and his counsel's lack of authorization to reach a settlement on the disputed issue, did not satisfy the requirements of R.C. 3105.171 to provide the trial court with continuing jurisdiction to grant the modification. We address appellant's arguments in turn.

1. The trial court's identification of the February 16, 2022 judgment entry as a nunc pro tunc order does not constitute reversible error.

{¶ 8} A trial court's issuance of a nunc pro tunc order is to "correct errors which are clerical in nature." See Friedrich v. Honeywell, 6th Dist. Lucas No. L-08-1300, 2009- Ohio-661, ¶ 10. Nunc pro tunc entries cannot be used to make substantive changes to a prior judgment and are limited to stating "judicial action previously and actually taken * * * [to ] make the journal speak the truth." Infrasys, Inc. v. Brothers Pavement Products Corp., 2020-Ohio-1157, 152 N.E.3d 1274, ¶ 20 (6th Dist), citing State ex rel. Rogers v. Rankin, 154 Ohio St.23, 26, 93 N.E.2d 281 (1950). Using a nunc pro tunc entry to make substantive changes to a prior judgment constitutes reversible error. Id. at ¶ 20-21. It is undisputed that the February 16, 2022 consent judgment entry constitutes a substantive modification to the prior divorce decree and does not correct a clerical error. Appellant argues that because the modification of the divorce decree constituted a substantive change, the trial court erred in granting the modification through the issuance of a nunc pro tunc judgment. We agree that the substantive modification of the parties' divorce decree was not subject to a nunc pro tunc order. However, we find that the trial court's February 16, 2022 judgment was not a nunc pro tunc order despite its caption.

{¶ 9} "Just because a trial court refers to an entry as nunc pro tunc does not make it so established." Gauthier v. Gauthier, 12th Dist. Warren No., 2019-Ohio-4208, ¶ 71, citing State v. Yeaples, 180 Ohio App.3d 720, 2009-Ohio-184, 907 N.E.2d 333, ¶ 15 (3d Dist.). The substance of the judgment entry determines whether the judgment actually constitutes a nunc pro tunc entry or was incorrectly identified as such. See Yeaples at ¶ 71-72 (holding that the trial court's nunc pro tunc judgment entry was not actually a nunc pro tunc entry, despite its title, as it was the first recitation of all substantive findings and only modified an interlocutory order); State v. Shamaly, 8th Dist. Cuyahoga No. 88409, 2007-Ohio-3409, ¶ 7-8 (holding that the judgment entry identifying the amount of the fine imposed was not a nunc pro tunc order as it was the actual imposition of judgment on the offender because it did not correct any clerical errors in a prior order stating that a fine would be imposed).

{¶ 10} Further, when an incorrect statement in a judgment entry does not result in prejudice to the appellant, the inclusion of those statements does not constitute reversible error. See First Place Bank v. Blythe, 7th Dist. Columbiana No. 12 CO 27, 2013-Ohio-2550, ¶ 2, 32 (holding that an incorrect statement in a judgment entry that does not serve as the basis for the final judgment is not a reversible error because appellant did not suffer prejudice resulting from the incorrect statement); Myers v. Myers, 153 Ohio App.3d 243, 2003-Ohio-3552, ¶ 40 (7th Dist.) (holding that a trial court's inclusion of superfluous findings in its judgment entry that did not serve as the basis for the judgment did not constitute prejudicial error).

{¶ 11} Here, despite the judgment entry's caption, the trial court did not actually grant the modification as the correction of a clerical error in the prior judgment. Instead, the record clearly shows that the trial court's modification of the divorce decree was accomplished through the granting of appellee's motion for relief from judgment and "by consent of the parties." Therefore, the February 16, 2022 judgment entry was not a nunc pro tunc entry, though captioned as such, but was actually a consent judgment entry granting relief from the prior decree and constitutes the court's substantive final judgment on an issue raised subsequent to that decree. Appellant's argument that the trial court's February 16, 2022 substantive modification of the prior divorce decree could not be accomplished through the issuance of a nunc pro tunc order is sound, but misplaced. The trial court did not improperly exceed the scope of a nunc pro tunc order because it did not issue a nunc pro tunc order. Moreover, appellant did not suffer any prejudice as a result of this misidentification. As a result, appellant's argument that the trial court committed reversible error by issuing a nunc pro tunc order to substantively modify its prior judgment is without merit.

2. The parties' consent entry provided the trial court with jurisdiction to...