Appeal from the Richland County Court of Common Pleas, Domestic Relations Division Case No. 2010 DIV 1540
For Appellant: R. PAUL CUSHION, II
For Appellee: CHARLES T. ROBINSON
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J.
(¶1} Plaintiff-Appellant Naomi Jackson appeals the March 8, 2012 judgment entry denying her Motion to Set Aside Settlement Agreement and/or Vacate Judgment and dismissing her Motion for Contempt and Motion to Modify Parenting Time.
FACTS AND PROCEDURAL HISTORY
(¶2} Plaintiff-Appellant Naomi Jackson ("Wife") and Defendant-Appellee Brent Jackson ("Husband") were married on July 27, 2005. Two minor children were born as issue of the marriage.
(¶3} Wife filed a Complaint for Divorce on December 28, 2010.
(¶4} The matter was set for a trial on July 14, 2011. In lieu of trial, the parties reached a settlement agreement. On July 14, 2011, the trial court went on the record and questioned the parties as to the terms of the settlement agreement to ensure it was a reflection of their voluntary agreement. The parties agreed to a divorce on the grounds of incompatibility. The settlement agreement stated as to the division of marital property to Wife:
Also Defendant to pay to wife the sum of $10, 000.00 over a period of 24 months. If Defendant can pay it sooner he may and is encouraged to. At the least, [Defendant] shall pay $5, 000 in 12 months. Plaintiff shall also receive the amount of $25, 000.00 from the Defendant's 401(K) to be by a QDRO.
(¶5} During the marriage, Wife applied for private student loans to fund her college and graduate education. In the settlement agreement, Wife agreed to be responsible for her student loan debt.
(¶6} The settlement agreement was filed with the court on July 20, 2011.
(¶7} After the July 14, 2011 hearing, Wife realized she could not immediately withdraw the $25, 000 from Husband's 401(K) plan. Husband is enrolled in an employee benefits plan entitled the "B Plan" at his place of employment. The "B Plan" does not permit a withdrawal from the fund by an alternate payee until the employee's retirement or separation from employment. Based on this discovery, Wife filed a Motion to Set Aside Settlement and/or Vacate Judgment on September 7, 2011. In the motion, she alleged the settlement agreement should be set aside due to accident, misrepresentation, or fraud. During the settlement negotiations, it was Wife's understanding from the attorneys in the case she could obtain the money from Husband's 401(K) plan within thirty to sixty days from the divorce. She stated she would not have consented to the settlement if she had known the money from the 401(K) would not be available until Husband retired. (Wife's Affidavit, Motion to Set Aside Settlement and/or Vacate Judgment.) She averred Husband knew he was enrolled in the "B Plan" and was aware of the terms of the employee benefits plan.
(¶8} Wife filed an Amended Motion to Set Aside Settlement and/or Vacate Judgment on November 2, 2011. In the motion, she further claimed Husband engaged in fraud by causing her student loans to be defaulted and accelerated. During the marriage, Wife applied for private student loans so she could complete her undergraduate and graduate education. Husband told Wife to take care of the applications. Wife's understanding was she had his permission to sign his name to the loan applications as a guarantor as she had signed his name to prior financial documents.
(¶9} Husband was aware that Wife had private student loans, but he was not aware she had signed his name to the applications as guarantor. Wife admitted Husband did not specifically say she could sign his name to the applications. Prior to the July 2011 hearing, Husband obtained his credit report and saw Wife's student loans on the report. In August 2011, after the settlement agreement hearing, Husband contacted the lenders funding the private student loans and stated Wife had signed his name to the loan applications as a co-signer without his authorization. The lenders gave Husband a fraud packet where he was required to file a police report. Based on the information Husband provided to the lenders, the lenders declared the loans fraudulent, defaulted the loans, and accelerated the payments. The student loans had originally been deferred until Wife completed her master's degree, which she was still in the process of taking classes in order to complete.
(¶10} The trial court held a hearing on the Motions to Set Aside Settlement and/or Vacate Judgment on January 30, 2012.
(¶11} On February 29, 2012, Wife filed an Ex Parte Motion to Modify Parenting Time. In the motion, Wife moved to suspend Husband's parenting time of their minor children due to allegations of abusive behavior towards the children by Husband. The trial court ruled on the motion on the same day, stating based on the motion and a status conference with counsel, it would hold a temporary order hearing on May 31, 2012 to allow Children Services to complete its investigation.
(¶12} The trial court issued its lengthy judgment entry on March 8, 2012. In the judgment entry, the trial court considered the evidence and law presented and determined Wife did not meet the elements of Civ.R. 60(B). The judgment entry also ordered the contempt actions and motions to modify temporary orders to be found moot and dismissed ...