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Mitchell v. Mitchell

December 5, 2008

TODD E. MITCHELL APPELLANT
v.
KELLY J. MITCHELL APPELLEE



Trial Court No. DR 1995-0600.

The opinion of the court was delivered by: Singer, J.

DECISION AND JUDGMENT

{¶1} Appellant appeals a judgment of the Lucas County Court of Common Pleas, Domestic Relations Division, denying a motion for relief from a 1996 divorce decree and subsequent Military Qualifying court order. For the reasons that follow, we reverse.

{¶2} Appellant, Todd E. Mitchell, and appellee, Kelly J. Mitchell, were married on November 4, 1989. Throughout the marriage, appellant served in the United States Air Force. On April 11, 1995, appellant filed a complaint seeking a divorce. Appellee answered and filed a cross-complaint for divorce.

{¶3} The matter came before the court for hearing on December 18, 1995. According to the resultant judgment entry, at that hearing the parties read into the record an oral separation agreement, later memorialized in a divorce decree. In material part, the decree provides:

{¶4} "5. Defendant [sic]*fn1 shall assign and transfer to Plaintiff, [sic] at his expense, one half of his military pension benefits accumulated by him from November 4, 1989 through and including December 18, 1995." (Emphasis added.)

{¶5} The divorce was final on April 1, 1996. On September 12, 1996, the court entered a Military Qualifying court order, assigning to appellee benefits from appellant's eventual military retirement in an amount equal to "* * * 50% of the marital portion of [appellant's] final disposable retired pay * * * earned during the marriage (which shall be defined as the period from November 4, 1989 until April 1, 1996)." (Emphasis added.)

{¶6} On December 13, 2007, appellant moved for relief from judgment with respect to the apportionment of his military pension. Appellant argued that any division of his military pension was erroneous because in 1996 his pension was not vested and, therefore, had a value of zero dollars. Moreover, appellant insisted, the September 1996 order was entered without jurisdiction and in conflict with the terms of the April 1996 judgment. When the trial court denied appellant's Civ.R. 60 (B) motion, he initiated this appeal. Appellant sets forth the following two assignments of error:

{¶7} "Assignment of Error Number One. The trial court abused its discretion by denying appellant's motion for relief from judgment and sustaining a Military Qualifying Order which by its terms is in conflict with the court's own journal and of which appellant had no notice.

{¶8} "Assignment of Error Number Two. The trial court abused its discretion by denying the appellant's motion for relief from judgment without a hearing."

{¶9} Civ.R. 60(B), in material part, provides:

{¶10} "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 has 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. * * *"

{¶11} "2. To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (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 Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of 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 Electric, Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, paragraph two of the syllabus.

{ΒΆ12} The question of whether relief should be granted or denied is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. An abuse of discretion is more than a mistake of law or an error of judgment, the term connotes that the court's attitude is arbitrary, unreasonable or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. It is an abuse of discretion for a trial court to deny a motion for relief ...


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