[Cite as Viscomi v. Viscomi, 2012-Ohio-5721.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 98405 

JEFFREY VISCOMI

PLAINTIFF-APPELLEE 

vs. 

TAMARA VISCOMI

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 
Cuyahoga County Court of Common Pleas 

Domestic Relations Division 

Case No. CP-D-331243 

BEFORE: Sweeney, P.J., S. Gallagher, J., and Rocco, J. 

RELEASED AND JOURNALIZED: December 6, 2012 

ATTORNEY FOR APPELLANT

Jeffrey W. Krueger 

J.W. Krueger, L.L.C. 

P.O. Box 360135 

Cleveland, Ohio 44136 

ATTORNEY FOR APPELLEE

Joyce E. Barrett 

800 Standard Building 

1370 Ontario Street 

Cleveland, Ohio 44113 

JAMES J. SWEENEY, P.J.: 

{¶1} Defendant-appellant Tamara Viscomi (“Wife”) appeals the court’s denial of her 

motion for relief from judgment in this divorce case. After reviewing the facts of the case 

and pertinent law, we affirm. 

{¶2} On January 3, 2011, the court granted a divorce to Wife and Jeffrey Viscomi 

(“Husband”). The judgment entry incorporated a separation agreement that the parties 

entered into on December 14, 2010. No direct appeal was filed from this judgment. 
{¶3} On August 19, 2011, Wife filed a motion for relief from judgment alleging that: 

 Husband did not fully disclose his income and business interests and misrepresented the 

value of the marital home; the separation agreement is inconsistent with the judgment entry; 

she was under duress when she signed the separation agreement; the separation agreement is 

not equitable; and the interrelationship between spousal support and child support violates 

public policy. 

{¶4} On April 25, 2012, the court denied Wife’s motion for relief from judgment 

finding that Wife failed to show she had a meritorious claim or defense, Wife was not entitled 

to relief under Civ.R. 60(B), and the motion was untimely. The court additionally found that 

many, if not all, of Wife’s complaints stemmed from the separation agreement and “should 

have been dealt with in a timely filed appeal.” Wife appeals and assigns one error for our 

review. 

 I. 

The trial court erred in denying Appellant’s Motion for Relief from Judgment 

under Civil Rule 60(B). 

{¶5} We review a ruling on a Civ.R. 60(B) motion for relief from judgment under an 

abuse of discretion standard. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 520 N.E.2d 

564 (1988). An abuse of discretion is “more than an error of law or judgment; it implies that 
the court’s attitude is unreasonable, arbitrary, or unconscionable.” (Citations omitted.) 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 

{¶6} In GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 150, 

351 N.E.2d 113 (1976), the Ohio Supreme Court held that to prevail on a Civ.R. 60(B) 

motion, 

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. 

{¶7} The court should overrule a motion for relief from judgment if the movant fails 

to establish any one of the three prongs of the GTE test. Id. at 151. 

{¶8} On appeal, Wife argues that she is entitled to relief from judgment under two 

subsections of Civ.R. 60(B). First, she requests relief under Civ.R. 60(B)(3), which states 

that “the court may relieve a party * * * from a final judgment * * * for * * * fraud * * *, 

misrepresentation or other misconduct of an adverse party * * *.” Wife argues that the 

“separation agreement demonstrates overreaching by [Husband] in this matter.” Included in 

this “overreaching” are Husband’s misrepresentation of their assets, the absence of child 

support in the separation agreement, and the conflict of interest created “as a result of 
[Husband’s] promise to pay [Wife’s] counsel the sum of $10,000 toward [Wife’s] attorney 

fees.”

{¶9} To support her argument, Wife cites to the Ohio Supreme Court’s holding in 

Gross v. Gross, 11 Ohio St.3d 99, 105, 464 N.E.2d 500 (1984), which states that antenuptial 

agreements 

are valid and enforceable if three basic conditions are met: one, if they have 

been entered into freely without fraud, duress, coercion or overreaching; two, if 

there was a full disclosure, or full knowledge, and understanding, of the nature, 

value and extent of the prospective spouse’s property; and, three, if the terms do 

not promote or encourage divorce or profiteering by divorce. 

{¶10} Because this case does not involve the validity of an antenuptial agreement, 

Gross does not apply. Rather, the appropriate law for the court to consider when addressing 

an allegation under Civ.R. 60(B)(3) is that “the party seeking relief bears the burden of 

proving such fraud, misrepresentation, or misconduct by clear and convincing evidence.” 

Settoni v. Settoni, 8th Dist. No. 97784, 2012-Ohio-3084, ¶ 25. 

{¶11} In Wife’s motion for relief from judgment, as well as her accompanying 

affidavit, she states the following regarding Husband’s alleged overreaching: Wife signed the 

separation under duress because Husband threatened that she “would fair much worse if the 
case went to trial * * *, the pressure of the trial taking place during the holiday period, and the 

anticipation of the children having to deal with their parents’ contentious matters during the 

holiday.” An allegation of duress includes 

(1) that one side involuntarily accepted the terms of another; (2) that 

circumstances permitted no other alternative; and (3) that said circumstances 

were the result of coercive acts of the opposite party. * * * The assertion of 

duress must be proven to have been the result of the defendant’s conduct and 

not by the plaintiff’s necessities. 

(Emphasis and citation omitted.) Blodgett v. Blodgett, 49 Ohio St.3d 243, 246, 551 N.E.2d 

1249 (1990). 

{¶12} Upon review we find that Wife did not present sufficient operative facts to 

allege the defense of duress or to demonstrate fraud, misrepresentation, or misconduct under 

Civ.R. 60(B). See Settoni, ¶ 27 (appellee’s assertion that appellant’s threats compelled him 

to sign an unfair separation agreement “rises only to the level of a mere general allegation that 

these events occurred” and does not justify relief under Civ.R. 60(B)(3)). Wife does not 

present any specific details, corroborating evidence, or legal authority to support her allegation 

that she is entitled to relief from judgment. 
{¶13} Additionally, Wife argues that “the Decree of Divorce does not equitably divide 

the parties’ marital assets [and Husband] did not make a full and true disclosure of the value(s) 

of his numerous business interests,” which entitles her to relief under Civ.R. 60(B)(3). To 

the extent that Wife argues that “signing the separation agreement was not in her best 

interest,” we find that the court acted within its discretion by ruling that this issue could have 

been resolved through a direct appeal. Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio 

St.3d 128, 129, 502 N.E.2d 605 (“a party may not use [a Civ.R. 60(B)] motion as a substitute 

for a timely appeal”). 

{¶14} Second, Wife requests relief under Civ.R. 60(B)(5), which is a catch-all 

provision of the statute, providing that the motion may be granted for “any other reason 

justifying relief from the judgment.” Wife alleges that the separation agreement violates 

public policy, because it makes her right to receive spousal support conditional on Husband 

and Wife’s minor children residing with Wife. This, she argues, “promotes or encourages 

[Husband] to profiteer by interfering with the mother-child relationship.” As support for this 

argument, Wife cites to R.C. 3105.18, which lists factors a court shall consider when awarding 

spousal support. 

{¶15} R.C. 3105.18 is not applicable to the case at hand, however, because the court 

incorporated into the divorce decree the terms of the separation agreement that Husband and 
Wife voluntarily entered into. Thomas v. Thomas, 5 Ohio App.3d 94, 100, 449 N.E.2d 478 

(5th Dist.1982). 

We hold that where, as here, a party has initiated negotiations leading to an 

“in-court” settlement stipulation incorporating essentially all of his demands, he 

should not be permitted to contend that the court in approving and adopting the 

bargain he struck has acted so unfairly as to constitute an abuse of discretion as 

a matter of law. 

Id. at 98. 

{ ¶ 16} Furthermore, Wife’s arguments challenging the terms of the separation 

agreement could have been raised on direct appeal. 

Rather than filing a direct appeal from the trial court’s final entry of divorce and 

separation agreement, the husband erroneously seeks review of the trial court’s 

judgment through his Civ.R. 60(B) motion, which does not allow for such 

relief. 

Thompson v. Dodson-Thompson, 8th Dist. No. 90814, 2008-Ohio-4710, ¶ 16. 

{¶17} In conclusion, Wife failed to demonstrate that she was entitled to relief from 

judgment under Civ.R. 60(B). Because she did not establish this prong of the GTE test, we 

need not review whether she had a meritorious defense or the motion’s timeliness. The court 

acted within its discretion by denying Wife’s motion, and her sole assignment of error is 

overruled. 

{¶18} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 
The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this 

judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

 

JAMES J. SWEENEY, PRESIDING JUDGE 

SEAN C. GALLAGHER, J., and 

KENNETH A. ROCCO, J., CONCUR