Russell A. Kelm v. Amy K. Kelm

Decision Date26 March 1992
Docket Number92-LW-2660,91AP-733.
PartiesRussell A. Kelm, Plaintiff-Appellant v. Amy K. Kelm, Defendant-Appellee.
CourtUnited States Court of Appeals (Ohio)

SCHWARTZ KELM, WARREN & RUBENSTEIN, and MR. RUSSELL A. KELM, pro se.

LUPER WOLINETZ, SHERIFF & NEIDENTHAL, MR. BARRY H. WOLINETZ, and MS. PAMELA J. BERTRAM, for appellee.

OPINION

APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations.

WHITESIDE J.

Plaintiff, Russell A. Kelm, appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, and raises three assignments of error, as follows:

"I. The trial court erred in not enforcing the arbitration clause contained in an antenuptial agreement which is binding and enforceable in Ohio.
"II. The trial court erred in ordering an evidentiary hearing and not compelling arbitration when the parties admitted signing a contract containing an arbitration clause.
"III. The trial court erred in not referring the determination of the validity of an agreement to the arbitrators when the contract contains an arbitration clause as to all of its material terms."

This action was commenced by the filing of a divorce complaint by plaintiff seeking to terminate his marriage with defendant, Amy K. Kelm. Plaintiff also filed a motion to stay proceedings and to compel arbitration respecting an antenuptial agreement between the parties. On August 29, 1990, a judgment entry was entered in the trial court finding that:

"*** [T]he arbitration clause contained in paragraph 10 of the Antenuptial Agreement is binding and enforceable and accordingly all disputes as to alimony, child support, and the nature, extent and division of real or personal property acquired during the marriage, and all procedural matters related thereto, shall be submitted to binding arbitration in accordance therewith ***.

"The judgment entry further provided that:

"*** [A]ll further matters in this Court involving alimony, child support and division of property are, until the decision of the arbitrators on those issues, STAYED ***."

The entry was signed by a judge of the trial court and approved by counsel for plaintiff but not signed by counsel for defendant. Instead, it was indicated, "submitted but not signed," in lieu of his signature. The entry did commence with the following:

"This matter came before the Court on July 26, 1990, upon the plaintiff's motion for stay and to compel arbitration so that the Court could determine the validity of the Antenuptial Agreement between the parties dated August 6, 1982 and the enforceability of the arbitration clause contained in paragraph 10 of the Agreement and upon full consideration by the Court it is hereby ADJUDGED AND DECREED that it appearing that both parties acknowledge signing the Antenuptial Agreement and being represented by counsel it is DECREED that the Agreement is valid and enforceable according to its terms ***."

On March 5, 1991, defendant filed a motion for relief from judgment pursuant to Civ. R. 60(B) based upon "numerous grounds," which the motion states are "for reasons that will be fully evidenced at the hearing." Apparently, that which is set forth in the memorandum in support of the motion is intended as a summary of these "reasons." Although not specifically delineated, the grounds appear to be threefold: (1) that no evidentiary hearing was held on the motion to compel; (2) that the judge who entered the August 29, 1990 order subsequently recused herself from further consideration of the case; and (3) that arbitration of alimony, including property division and support matters, is improper because it interferes with the jurisdiction of the court to determine such matters.

The order staying proceedings on certain matters and compelling arbitration with respect thereto was a final appeal able order pursuant to R.C. 2711.02, which reads in pertinent part that:

"*** An order under this section that grants or denies a stay of a trial of any action pending arbitration is a final order and may be reviewed, affirmed, modified, or reversed on appeal pursuant to the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505 of the Revised Code."

Similarly, of course, the order setting aside the August 29, 1990 judgment entry and then, without further hearing, finding the arbitration agreement to be unenforceable and denying the stay is also a final appealable order.

Originally, the motion to stay proceedings and to compel arbitration was set for hearing on June 7, 1990. At the same time, various other motions were set for hearing on different dates. On June 8, 1990, a judgment entry was entered providing, inter alia, that:

"*** [O]n plaintiff's motion to compel arbitration, being dependent in part upon the validity of an Antenuptial Agreement between the parties, the matter is set for a record contested evidentiary hearing before the Court on Thursday, July 26 at 9:30 a.m. to determine the validity of the Antenuptial Agreement and the arbitration clause therein ***."

Apparently, no evidentiary hearing was conducted, and defendant did not object to there being no formal evidentiary hearing until six months later, long after the time for appeal had expired and following a change of counsel for defendant.

First, defendant contends that the July 26, 1990 hearing had been continued, referring to a docket entry of July 25, 1990, and an entry of July 26, 1990. A reference to the document relied upon indicates that the July 26, 1990 entry on its face continued a hearing scheduled for July 31, 1990, not the July 26, 1990 hearing and pertained to "discovery and other preliminary matters" (record document 106). The document represented by the July 25, 1990 docket entry (record document 89) is not in the record on appeal, at least not in the location where it should be, there being a document number 88 followed by document number 91. Notwithstanding the absence of such document, the trial court in granting the motion to vacate judgment found that the July 26, 1990 evidentiary hearing was canceled on July 25, 1990, the day before the scheduled hearing but then states that: "Neither the docket nor any entry herein reflects how or why or upon whose request the July 26, 1990 evidential hearing on plaintiff's motion was canceled." Nor does the record in any way reflect that either party was aware that the hearing was canceled. Instead, there is an express finding by a judge of the trial court that a hearing in fact took place on July 26, 1990, namely, the August 29, 1990 order partially quoted above.

The record does reflect that then counsel for defendant on February 28, 1990, filed a memorandum contra plaintiff's motion to stay proceedings and to compel arbitration. In that memorandum, it is first suggested that the motion is premature and should not be granted unless a divorce is first granted to one of the parties. The other issue raised was to the effect that an agreement to submit support, alimony, and property division matters to arbitration interferes with the original exclusive and continuing jurisdiction of the trial court and, for that reason, should not be granted. The issue of "duress" now suggested by defendant was not raised at that time.

Although not directly mentioned in the three assignments of error, the basic underlying issue is whether the trial court abused its discretion in granting a Civ. R. 60(B) motion for relief from judgment. As indicated above, pursuant to R.C. 2711.02 (as amended effective May 31, 1990), the order staying proceedings and compelling arbitration constituted a final order, which is immediately appeal able. Having failed to appeal the August 29, 1990 "final order," defendant may not in support of the Civ. R. 60(B) motion raise issues that could have been raised upon appeal. A motion for relief from judgment is not a substitute for an appeal, and errors which could have been corrected by a timely appeal cannot be the predicate for a Civ. R. 60(B) motion for relief from judgment. See Brick Processors, Inc. v. Culbertson (1981), 2 Ohio App. 3d 478; State, ex rel. Elyria v. Trubey (1983), 24 Ohio App. 3d 44; and Waspe v. Ohio State Dental Bd. (1985), 27 Ohio App. 3d 13. A review of defendant's motion for relief from judgment and her brief herein indicates that no grounds are asserted for relief from judgment pursuant to Civ. R. 60(B) that could not properly have been raised upon direct appeal. Basically, defendant's contention is...

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