Sullivan v. Sullivan

S
[Cite as Sullivan v. Sullivan, 2021-Ohio-1117.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 LISA ANN HORVATH SULLIVAN                             :
                                                       :
          Plaintiff-Appellee                           :   Appellate Case No. 28961
                                                       :
 v.                                                    :   Trial Court Case No. 2016-DR-1086
                                                       :
 BRENDAN E. SULLIVAN                                   :   (Domestic Relations Appeal)
                                                       :
          Defendant-Appellant                          :
                                                       :

                                                  ...........

                                                  OPINION

                              Rendered on the 2nd day of April, 2021.

                                                  ...........

BRIAN A. KRUSE, Atty. Reg. No. 0087411, 10532 Success Lane, Dayton, Ohio 45458
     Attorney for Plaintiff-Appellee

BRENDAN E. SULLIVAN, 1199 Durham Drive, Centerville, Ohio 45459
    Defendant-Appellant, Pro Se

                                                  .............

TUCKER, P.J.
                                                                                             -2-


         {¶ 1} Appellant Brendan E. Sullivan appeals from the trial court’s order overruling

his motion for Civ.R. 60(B) relief from the trial court’s July 17, 2020 judgment. Since the

trial court did not abuse its discretion by overruling Brendan’s1 motion, the trial court’s

judgment will be affirmed.



                                 Facts and Procedural History

         {¶ 2} The parties’ divorce proceeding culminated in the June 21, 2018 filing of a

final judgment and decree of divorce (“divorce decree”). Pertinent to this appeal, the

divorce decree required Brendan, a retired military officer, to pay his former wife, Lisa

Ann Horvath Sullivan, 46.52 percent of his disposable military retirement pay.             The

divorce decree also required Brendan to directly pay Lisa this amount until “a separate

document captioned MILITARY RETIRED PAY DIVISION ORDER,” which was to be

prepared by the “QDRO Group,” became effective.2

         {¶ 3} On October 12, 2018, Lisa filed a motion requesting that Brendan be found

in contempt of court for his failure to directly pay Lisa her portion of the retirement benefit.

A hearing before a magistrate was conducted on February 22, 2019. The magistrate

concluded Brendan had not paid Lisa the entire amount of retirement pay to which she

was entitled and that Brendan was therefore in contempt of court. According to the

magistrate’s decision, the deficit was $4,394.18. The magistrate ordered that Brendan

could purge the contempt by paying Lisa $244 per month toward the arrearage until it


1
    For clarity, we will refer to the parties by their first names.

2
 Based upon the parties’ statements at oral argument, it seems that this document has
yet to be finalized.
                                                                                       -3-


was eliminated and by further paying Lisa $500 toward her attorney fees. Brendan filed

objections and, upon receipt of the hearing transcript, supplemental objections. In a

judgment filed on July 17, 2020, the trial court overruled the objections, but the court

modified the purge order, stating: “Brendan may purge the contempt by signing and filing

the paperwork to have Lisa paid her portion of the retirement directly and pay[ing] $500

in attorne[y] fees to Lisa within 90 days * * *.” The trial court further ordered that the

$4,394.18 arrearage be added to Brendan’s support enforcement account to be repaid at

the rate of $250 per month.

       {¶ 4} Brendan appealed pro se. On October 23, 2020, we affirmed the trial court’s

July 17, 2020 judgment. Sullivan v. Sullivan, 2d Dist. Montgomery No. 28848, 2020-

Ohio-5036. In the appeal, Brendan, though not setting forth any assignments of error,

articulated the following issues for review:

       1. The Appellant requests the Honorable court’s review of 10 U.S. Code

       1408. The Appellant is subject to the effects of two Trial Court Orders

       “Agreed Order Regarding Survivor Benefit Designation and Premium” dated

       21 Sept 2017 and the Final Judgment and Decree of Divorce” dated 21 June

       2018. In an attempt to bypass 10 U.S. Code 1408 Section (e) protections of

       50% of his disposable retired income.

       2. The Appellant requests the Honorable court’s review of “The Military Pay

       Division Order” prior to signature. The order is not in compliance with 10

       U.S. Code 1408, as it fails to protect 50% of the service member’s

       disposable income, through a manipulation of calculations.

       3. The Appellant requests the Honorable court’s review and to parse the
                                                                                         -4-


      Decision and Judgment dated 17 July 2020. The judgment has considerable

      errors, prejudices, and deliberate misrepresentations of facts and law.

      4. The Appellant requests the Honorable court to review incidents of

      corruption, fraud, and judicial misconduct that not only violate the basic right

      of equality before the law but deny procedural rights guaranteed by the

      United States Constitution. Determining if the Appellant was represented

      honestly and fairly throughout the domestic relations court proceedings and

      if the officers of the court acted properly.

Id. at ¶ 12.

In our decision, we stated the following regarding the arrearage issue:

             Based on the evidence before the trial court * * * we see no error in

      its determination that Brendan had not paid Lisa the required amount,

      despite his belief to the contrary and notwithstanding the fact that he had

      made some payments. In order to establish civil contempt, it is necessary

      to establish only the existence of a court order, knowledge of the order, and

      a violation of it. Intent to violate the order need not be shown.

(Citation omitted.)

Id. at ¶ 15.

Finally, we stated the following regarding Brendan’s

other retirement pay concerns:

             * * * On appeal, Brendan suggests that the trial court violated 10

      U.S.C.1408 by awarding Lisa more than 50 percent of his disposable retired

      pay. But the trial court’s calculations fail to support that assertion. He also

      suggests that Lisa has not paid the “survivor benefit premium” as required.

      Under the terms of the divorce decree, however, Lisa’s percentage of

      Brendan’s military pension was reduced from 50 percent to 46.52 percent
                                                                                         -5-


       to account for her obligation to pay that premium. Thus, Lisa is paying the

       premium through this reduction. Brendan further argues that this deduction

       of 3.48 percent does not cover the full cost of the premium. But Brendan

       consented to this percentage when he signed the agreed divorce decree

       containing it. * * * If Brendan believes the divorce decree is erroneous, a

       Civ.R. 60(B) motion would be the proper avenue of relief. As it currently

       exists, the divorce decree only requires Lisa to pay 3.48 percent, which is

       being done through the deduction addressed above. Brendan also appears

       to suggest that other deductions to his disposable retired pay might apply

       under 10 U.S.C. 1408, but he did not present evidence of any at the hearing.

       ***

Id. at ¶ 16.

       {¶ 5} On October 27, 2020, seemingly in response to our Civ.R. 60(B) reference

noted above, Brendan filed a Civ.R. 60(B) motion “to correct” the July 17, 2020 judgment.

The motion set forth eight “issues” which, in one fashion or another, asserted that the July

17, 2020 judgment was incorrectly decided. On November 12, 2020, the trial court,

without conducting a hearing, overruled Brendan’s Civ.R. 60(B) motion, finding that the

issues raised in the motion were barred by collateral estoppel. This appeal followed.



                                         Analysis

                                  Civ.R. 60(B) Principles

       {¶ 6} Civ.R. 60(B) allows a trial court to relieve a party from a final judgment for

any of the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2)
                                                                                              -6-


newly discovered evidence which by due diligence could not have been discovered in

time to move for a new trial under Civ.R. 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. GMAC Mtge. L.L.C. v. Herring, 

189 Ohio App. 3d 200

, 2010-Ohio-

3650, 

937 N.E.2d 1077

, ¶ 31 (2d Dist.). Civ.R. 60(B) relief is appropriate when the

moving party establishes the following: (1) entitlement to relief under one of the grounds

for relief; (2) a meritorious claim or defense if relief is granted; and (3) the motion is timely

made (if the asserted ground for relief is Civ.R. 60(B)(1), (2), or (3), the motion must be

filed within one year of the judgment.)

Id. at ¶ 30,

citing GTE Automatic Elec., Inc. v.

ARC Industries, Inc., 

47 Ohio St. 2d 146

, 

351 N.E.2d 113

(1976). As can be seen by the

limited grounds for relief, Civ.R. 60(B) is not a mechanism to correct an erroneous

decision. Such error correction is the purview of an appeal. State v. Pigg, 2d Dist.

Champaign No. 2001-CA-6, 

2001 WL 1018367

, *1 (Sep. 7, 2001) (Civ.R. 60(B) motion

asserted the trial court’s sexual predator designation was erroneously made; thus it was

an attempt to use a Civ.R. 60(B) motion as a “substitute for * * * an appeal.”).

       {¶ 7} An appellate court reviews a trial court’s Civ.R. 60(B) decision for an abuse

of discretion. Bissell v. Bissell, 2d Dist. Montgomery No. 26855, 2016-Ohio-3086, ¶ 9.

A trial court abuses its discretion when its decision is “unreasonable, arbitrary, or

unconscionable.”

Id., quoting AAAA Ents.,

Inc. v. River Place Community Urban

Redevelopment Corp., 

50 Ohio St. 3d 157

, 161, 

553 N.E.2d 597

(1990).
                                                                                             -7-


       {¶ 8} A movant is not automatically entitled to a hearing on a Civ.R. 60(B) motion.

GMAC Mtge. at ¶ 33, quoting Hrabak v. Collins, 

108 Ohio App. 3d 117

, 121, 

670 N.E.2d

281

(1995). Instead, a trial court abuses its discretion when it overrules “a Civ.R. 60(B)

motion * * * without holding an evidentiary hearing only if the motion or supporting

affidavits contain allegations of operative facts that would warrant relief under Civ.R.

60(B).” (Citations omitted.)

Id.

Assignments of Error

       {¶ 9} Brendan asserts three assignments of error:

               The trial court abused [its] discretion by denying the Civ.R. 60(B)

       motion without [a] hearing.

               The trial court abused [its] discretion by failing to follow specific

       Federal Laws, Guidelines, Department of Defense Regulations, and

       processes that prevent division of military retirement pay and transfer of

       Survivor Benefits Plan.

               The trial court * * * permitted extrinsic fraud by not allowing a Civ.R.

       60(B) hearing to admit evidence that goes directly against the facts of this

       case.

To facilitate our review, we will first discuss the second assignment of error.

       {¶ 10} Brendan’s second assignment of error, although stated in terms of the trial

court’s purported abuse of discretion, is an assertion that the trial court erred by its failure

to follow federal law, guidelines, and regulations regarding the division of the military

retirement benefits, and that this failure “prevented” the division of the retirement pay in
                                                                                            -8-


the manner set forth in the divorce decree. Moreover, the asserted errors seem to relate

to the divorce decree, not the July 17, 2020 judgment. In any event, a Civ.R. 60(B)

motion, as discussed, is not the proper mechanism to seek correction of purported errors

in a trial court’s judgment.3

       {¶ 11} Since Brendan’s Civ.R. 60(B) motion did not articulate any Civ.R. 60(B)

ground for relief, except in a conclusory fashion, the trial court did not abuse its discretion

by overruling the motion. As such, Brendan’s second assignment of error is overruled.4



                            First and Third Assignments of Error

       {¶ 12} Brendan’s first and third assignments of error assert, respectively, that the

trial court abused its discretion by denying the Civ.R. 60(B) motion without a hearing and

that the trial court “permitted extrinsic fraud” by not conducting a hearing during which

“evidence that goes directly against the facts of this case” would have been admitted into

evidence. As already discussed, Brendan’s motion asserts trial court error as opposed

to setting forth any Civ.R. 60(B) grounds for relief; as such, the trial court did not abuse

its discretion by overruling Brendan’s motion without conducting an evidentiary hearing.

Brendan’s first and third assignments of error are overruled.




3
  We realize that our previous opinion references Civ.R. 60(B), but the reference was to
the divorce decree, not the July 17, 2020 judgment.

4
  Brendan’s claim, which includes an assertion regarding Lisa’s entitlement to a survivor
benefit, that the retirement pay cannot be divided in the manner set forth in the divorce
decree, may be accurate. However, this is not the issue in this appeal. This issue, in
the first instance, would have to be decided by the trial court upon the filing of an
appropriate motion.
                                                                                 -9-


                                   Conclusion

      {¶ 13} Having overruled Brendan’s assignments of error, the judgment of the

Montgomery County Common Pleas Court, Domestic Relations Division is affirmed.



                                  .............



HALL, J. and EPLEY, J., concur.



Copies sent to:

Brian A. Kruse
Brendan E. Sullivan
Hon. Denise L. Cross

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