[Cite as Archer v. Vallette, 2022-Ohio-3560.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Lynda M. Archer, fka Vallette, :

Plaintiff-Appellant, :

 No. 21AP-288

v. : (C.P.C. No. 13DR-2191)

Edward N. Vallette, : (REGULAR CALENDAR)

Defendant-Appellee. :

D E C I S I O N

Rendered on October 6, 2022

On brief: Trolinger Law Offices LLC, and Christopher L. 

Trolinger, for appellant. Argued: Christopher L. Trolinger.

On brief: Christopher J. Minnillo, for appellee. 

Argued: Christopher J. Minnillo.

APPEAL from the Franklin County Court of Common Pleas,

Division of Domestic Relations

KLATT, J.

{¶ 1} Plaintiff-appellant, Lynda M. Archer, appeals a judgment of the Franklin 

County Court of Common Pleas, Division of Domestic Relations, that granted defendantappellee, Edward N. Vallette, relief from a previous judgment pursuant to Civ.R. 60(B). For 

the following reasons, we reverse the judgment and remand this matter to the trial court.

{¶ 2} On August 15, 2013, the trial court issued a judgment entry and decree of 

divorce that granted the parties a divorce, divided the parties' assets and debts, and ordered 

Vallette to pay Archer $600 per month in permanent spousal support. Neither party 

contested the divorce and the parties agreed to the terms of the divorce decree. 
No. 21AP-288 2

{¶ 3} Well over six years later, on February 4, 2020, Vallette moved to modify or 

terminate the payment of spousal support. Archer responded by moving to dismiss 

Vallette's motion. Archer pointed out that the divorce decree specifically provided that 

"[t]he Court [did] not retain jurisdiction over [the spousal support] provision." (Aug. 15, 

2013 Decree of Divorce at 4.) As a consequence, Archer argued, the trial court lacked 

jurisdiction pursuant to R.C. 3105.18(E) to modify the amount or terms of the spousal 

support award.

{¶ 4} Vallette then filed a motion seeking relief from judgment under Civ.R. 60(A). 

According to Vallette, the court made a clerical error in inserting the word "not" when 

stating, "The Court does not retain jurisdiction over [the spousal support] provision." 

(Aug. 15, 2013 Decree of Divorce at 4.) Vallette asked the trial court to correct the divorce 

decree by deleting the erroneously inserted word. Archer responded that no such clerical 

error existed; Vallette was asking the court to substantively change the terms of the divorce 

decree.

{¶ 5} Next, Vallette filed a motion for relief from judgment under Civ.R. 60(B)(5). 

In this motion, Vallette claimed that in addition to the trial court's alleged clerical error, the 

parties made a mutual mistake in approving a divorce decree that did not grant the trial 

court continuing jurisdiction to modify the amount and terms of the spousal support award. 

Vallette stated that he "expect[ed] the evidence to show that neither of the parties meant 

for [him] to pay spousal support until the day [he] takes his dying breath, without any 

consideration for changes to [Archer's] future financial or marital situation." (Oct. 26, 

2020 Mot. for Relief Under Civ.R. 60(B)(5) at 2.) Vallette argued that the lack of mutual 

assent to the spousal support term in the divorce decree warranted relief from judgment 

under Civ.R. 60(B)(5).

{¶ 6} A hearing before the trial court occurred on May 5, 2021. At that hearing, 

Archer admitted that she had not disclosed all the parties' assets and debts to the trial court 

prior to the granting of the divorce. The trial court then announced:

I'm granting the [Civ.R. 60(B)(5)] motion as to everything but 

the divorce, and the reason is because the spousal support 

provision may have been different if we had known that there 

were additional debts to be paid.
No. 21AP-288 3

All of the assets weren't allocated; all of the debts weren't 

allocated. So you have to take all of that into account when 

determining who will pay spousal [support] or who will not pay 

spousal [support]. So it [a]ffects the entirety of the case. So I 

am granting a [Civ.R.] 60(B) to everything except the divorce 

itself.

(May 5, 2021 Tr. at 22.)

{¶ 7} Archer's counsel objected, reminding the trial court that there was no 

"motion pending before the Court on this issue as to the [Civ.R.] 60(B) * * *." (Tr. at 23.) 

In response, the trial court stated that it could sua sponte grant Civ.R. 60(B) relief.

{¶ 8} In a judgment dated May 19, 2021, the trial court sua sponte granted Vallette 

Civ.R. 60(B) relief on the basis that Archer did not fully disclose the parties' marital assets 

and debts. The trial court vacated the August 15, 2013 divorce decree, except to the extent 

that it granted the parties a divorce.

{¶ 9} Archer now appeals the May 19, 2021 judgment, and she assigns the following 

errors:

[1.] THE TRIAL COURT ERRED AND ABUSED ITS 

DISCRETION IN GRANTING APPELLEE'S MOTION FOR 

[CIV.R.] 60(B)(5) RELIEF VACATING THE DIVORCE 

DECREE AS TO SPOUSAL SUPPORT AS THE TRIAL COURT 

DID NOT HAVE JURISDICTION OR AUTHORITY TO 

GRANT CIV. R. 60(B)(5) RELIEF BY RULE OR STATUTE.

[2.] THE TRIAL COURT ERRED AND ABUSED ITS 

DISCRETION IN GRANTING APPELLEE'S MOTION FOR 

AND COURT'S SUA SPONTE [CIV.R.] 60(B)(5) RELIEF 

VACATING THE DIVORCE DECREE AS TO PROPERTY 

DIVISION AS THE TRIAL COURT DID NOT HAVE 

JURISDICTION OR AUTHORITY TO GRANT CIV. R. 

60(B)(5) RELIEF BY RULE OR STATUTE.

[3.] THE TRIAL COURT COMMITTED PLAIN ERROR IN 

GRANTING CIV. R. 60(B)(5) RELIEF AS TO SPOUSAL 

SUPPORT AND DIVISION OF PROPERTY AS THE TRIAL 

COURT LACKED AUTHORITY AND JURISDICTION TO 

GRANT [CIV.R.] 60(B)(5) RELIEF BY RULE OR BY 

STATUTE.

[4.] THE TRIAL COURT COMMITTED PLAIN ERROR IN 

GRANTING CIV. R. 65(B)(5) [sic] RELIEF WITHOUT 
No. 21AP-288 4

FINDING THAT THE APPELLEE SOUGHT RELIEF WITHIN 

A REASONABLE TIME.

[5.] THE TRIAL COURT COMMITTED PLAIN ERROR AND 

ABUSED ITS DISCRETION IN SUA SPONTE VACATING ITS 

JUDGMENT AS TO THE PROPERTY DIVISION AS SUCH 

WAS NOT MOVED BY A CIV.R. 60(B) MOTION.

[6.] THE TRIAL COURT ERRED AND ABUSED ITS 

DISCRETION IN DENYING PLAINTIFF-APPELLANT'S 

MOTION FOR ATTORNEY FEES AS THE CASE LAW WAS 

CLEAR THAT DEFENDANT-APPELLEE'S MOTIONS WERE 

NOT SUPPORTED BY THE LAW OR FACTS OF THE CASE.

{¶ 10} By Archer's first assignment of error, she argues that the trial court lacked 

jurisdiction to vacate the spousal support provision of the divorce decree. We agree.

{¶ 11} Whether a trial court has jurisdiction to modify a spousal support award 

presents a question of law. Murphy v. Murphy, 10th Dist. No. 12AP-1079, 2013-Ohio-5776, 

¶ 13. Appellate courts review questions of law de novo. Id.

{¶ 12} Pursuant to R.C. 3105.18(E)(1):

if a continuing order for periodic payments of money as spousal 

support is entered in a divorce * * *, the court that enters the 

decree of divorce * * * does not have jurisdiction to modify the 

amount or terms of the * * * spousal support unless the court 

determines that the circumstances of either party have changed 

and unless * * * the decree * * * contains a provision specifically 

authorizing the court to modify the amount or terms of * * * 

spousal support.

This provision controls when a trial court has jurisdiction to modify a spousal support 

award contained in a divorce decree. Morris v. Morris, 148 Ohio St.3d 138, 2016-Ohio5002, ¶ 56. Under this provision, a trial court only has jurisdiction to modify the spousal 

support award if the decree states that the court reserves jurisdiction to modify it. Id. at 

¶ 57. 

{¶ 13} Because R.C. 3105.18(E) is a substantive law, it prevails over the use of a 

procedural mechanism such as Civ.R. 60(B). Morris at ¶ 43, 55. Therefore, whether a court 

has jurisdiction to modify or vacate a spousal support award under Civ.R. 60(B) turns upon 

whether a decree of divorce or dissolution contains a reservation of jurisdiction. Morris at 

¶ 57. To permit a trial court to exercise jurisdiction on the authority of Civ.R. 60(B) in the 
No. 21AP-288 5

absence of a reservation of jurisdiction would improperly imbue a procedural rule with 

more force than the substantive law. Morris at ¶ 57. Accordingly, "a trial court does not 

have jurisdiction under Civ.R. 60(B) to vacate or modify an award of spousal support in a 

decree of divorce or dissolution when the decree does not contain a reservation of 

jurisdiction to modify the award of spousal support pursuant to R.C. 3105.18(E)." Morris

at ¶ 63.

{¶ 14} Vallette argues that R.C. 3105.18(E) does not apply to this case because that 

provision only precludes a court from exercising its continuing jurisdiction to modify a 

spousal support award, and in this case, the trial court vacated the spousal support award. 

In Morris, the Supreme Court of Ohio rejected Vallette's distinction between modification 

of the spousal support award and vacation of the award as "artificial." Id. at ¶ 49. The court 

concluded that "when an award [of spousal support] is vacated, it is a modification of the 

order, and a modification of the order is governed by the substantive law of R.C. 3105.18." 

Morris at ¶ 54.

{¶ 15} In the case at bar, the divorce decree specifically does not reserve jurisdiction 

to modify the spousal support award. Consequently, under R.C. 3105.18(E), the trial court 

did not have jurisdiction to vacate the spousal support award and erred in doing so. We 

thus sustain Archer's first assignment of error.

{¶ 16} We next turn to Archer's fifth assignment of error. By that assignment of 

error, Archer argues that the trial court erred in sua sponte granting Vallette Civ.R. 60(B)

relief, thereby vacating the provisions of the divorce decree that divided the parties' assets 

and liabilities. We agree.

{¶ 17} To determine whether the trial court had the authority to sua sponte grant 

Civ.R. 60(B) relief, we must construe the language of Civ.R. 60(B). Interpretation of a Civil 

Rule of Procedure presents a question of law, which we consider de novo. Gumins v. Ohio 

Dept. of Rehab. & Corr., 10th Dist. No. 10AP-941, 2011-Ohio-3314, ¶ 11.

{¶ 18} In relevant part, Civ.R. 60(B) states, "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 * * *." Pursuant to the plain language of this rule, a court may grant relief 

under Civ.R. 60(B) only on a party's motion. Osbourne v. Kroger Co., 10th Dist. No. 19AP869, 2020-Ohio-6757, ¶ 14. A court, therefore, has no authority to sua sponte vacate a 
No. 21AP-288 6

judgment under Civ.R. 60(B). Osbourne at ¶ 14; First Merit Bank, NA v. Crouse, 9th Dist. 

No. 06CA008946, 2007-Ohio-2440, ¶ 20; Zunshine v. Cott, 10th Dist. No. 06AP-868, 

2007-Ohio-1475, ¶ 19.

{¶ 19} In the case at bar, Vallette moved for Civ.R. 60(B) relief, but he only argued 

that the trial court should grant relief from judgment because the parties made a mutual 

mistake in approving a divorce decree that did not reserve jurisdiction to modify the spousal 

support award. Thus, at most, Vallette moved the trial court to vacate the spousal support 

provision in the divorce decree. As Vallette's Civ.R. 60(B) motion did not mention, much 

less seek any relief regarding the property division, the Civ.R. 60(B) relief the trial court 

granted regarding the property division was granted sua sponte. The trial court exceeded 

its authority in granting that relief to Vallette.1

{¶ 20} On appeal, Vallette points out that a trial court has inherent authority to 

vacate its own void judgment. Vallette argues that the divorce decree is void because the 

trial court could not divide all the parties' marital assets and liabilities due to Archer's 

inadequate disclosure. Consequently, Vallette contends, the trial court had inherent 

authority to vacate the void property division contained within the divorce decree. We find 

this argument unavailing.

{¶ 21} "[A] void judgment is one entered by a court lacking subject-matter 

jurisdiction over the case or personal jurisdiction over the parties." State v. Hudson, 161 

Ohio St.3d 166, 2020-Ohio-3849, ¶ 11. When a case is within a court's subject-matter 

jurisdiction and the parties are properly before the court, any error in the exercise of the 

court's jurisdiction renders a judgment voidable, not void. Id. Here, Vallette identifies an 

alleged error in the trial court's exercise of jurisdiction that potentially rendered the divorce 

decree voidable. Because the decree is not void, the trial court could not use its inherent 

power to vacate it.

1

 We include in the sua sponte relief awarded by the trial court the court's purported grant of Vallette's 

Civ.R. 60(B) motion "to correct the duration of the marriage for division of the retirement accounts * * *." 

(May 19, 2021 Jgmt. Entry at 1.) As we stated above, Vallette's Civ.R. 60(B) motion did not request any 

relief related to the property division. Thus, the trial court acted sua sponte in modifying the term of the 

divorce decree that divided Vallette's retirement account. 
No. 21AP-288 7

{¶ 22} The trial court erred by sua sponte vacating the property division in the 

divorce decree pursuant to Civ.R. 60(B). Accordingly, we sustain the fifth assignment of 

error.

{¶ 23} By her sixth assignment of error, Archer argues that the trial court erred in 

failing to consider her motion for attorney fees. We agree.

{¶ 24} Pursuant to R.C. 3105.73(B), "[i]n any post-decree motion or proceeding that 

arises out of an action for divorce * * *, the court may award all or part of reasonable 

attorney fees and litigation expenses to either party if the court finds the award equitable." 

The post-decree litigation at issue arose out of Vallette's attempt to modify the spousal 

support award, despite the provision in the divorce decree divesting the trial court of 

continuing jurisdiction over that award and Vallette's acknowledgment at the divorce 

hearing that he understood the import of that provision. Given these circumstances, we 

conclude that the trial court erred in summarily denying Archer's motion for attorney fees 

without consideration. Accordingly, we sustain Archer's sixth assignment of error, 

although only to the extent that we find error in the trial court's failure to consider her 

motion for attorney fees on its merits. We leave it to the trial court to exercise its discretion 

on remand to determine whether a grant of attorney fees is equitable under R.C. 

3105.73(B).

{¶ 25} Our resolution of the first and fifth assignments of error renders moot the 

second, third, and fourth assignments of error. Consequently, we do not address those 

assignments of error.

{¶ 26} For the foregoing reasons, we sustain the first, fifth, and sixth assignments of 

error. By sustaining the first and fifth assignments of error, we render moot the second, 

third, and fourth assignments of error. We reverse the judgment of Franklin County Court 

of Common Pleas, Division of Domestic Relations, and we remand this cause to that court 

for further proceedings consistent with law and this decision

Judgment reversed; cause remanded.

SADLER and BEATTY BLUNT, JJ., concur.