[Cite as Hawkins v. Hawkins, 2012-Ohio-2795.]

 IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO 

KAREN S. HAWKINS : 

Plaintiff-Appellee : C.A. CASE NO. 2011 CA 55 

v. : T.C. NO. 05DR369 

PHILLIP D. HAWKINS : (Civil appeal from Common 

 Pleas Court, Domestic Relations) 

Defendant-Appellant : 

 : 

 . . . . . . . . . . 

O P I N I O N

Rendered on the 22nd day of June , 2012. 

 . . . . . . . . . . 

SAMUEL J. PETROFF, Atty. Reg. No. 0014983, One S. Limestone Street, Suite 1000, 

Springfield, Ohio 45502 

Attorney for Plaintiff-Appellee 

DOUGLAS W. GEYER, Atty. Reg. No. 0022738 and SAMANTHA L. BERKHOFER, 

Atty. Reg. No. 0087370, 451 Upper Valley Pike, Springfield, Ohio 45504 

Attorneys for Defendant-Appellant 

 . . . . . . . . . . 
2

FROELICH, J. 

{¶ 1} Phillip Hawkins appeals from a judgment of the Clark County Court 

of Common Pleas, Domestic Relations Division, which overruled his Civ.R. 60(B) motion 

for relief from judgment. The judgment at issue was his decree of divorce from Karen 

Hawkins, particularly the portion related to the distribution of his pension fund. 

{¶ 2} Because the trial court did not abuse its discretion in concluding that Mr. 

Hawkins’s motion for relief from judgment was untimely and failed to raise a meritorious 

defense, the judgment of the trial court will be affirmed. 

Facts and Procedural History

{¶ 3} Phillip and Karen Hawkins were married in 1978 and agreed to the terms of 

their non-contested divorce in the fall of 2005, including that September 30, 2005 would 

serve as the date of the end of their marriage. At the time of their divorce, Mr. Hawkins had 

a pension plan with the Central States Southeast and Southwest Areas Pension Fund (“the 

pension plan”), and the parties had been married for the entire period of Mr. Hawkins’s 

employment, by which he was eligible to participate in the pension plan. 

{¶ 4} The agreement that was documented in the divorce decree with respect to 

Mr. Hawkins’s pension plan was as follows: 

Defendant, Phillip D. Hawkins is * * * a participant in the * * * 

Pension Fund, which through September 2004 [sic], has earned him 16.383 

years of contributory credit. Plaintiff, Karen S. Hawkins shall receive a fifty 
3

percent (50%) interest in said pension plan, said benefit to be determined as 

follows: date of Defendant’s hire through September 30, 2005, the date of 

the final hearing herein; divided by the total years of eligibility at the time of 

defendant’s retirement; multiplied by one-half of the total monthly benefit 

payable at the time of retirement. 

Mrs. Hawkins’s attorney was ordered to draft a Qualified Domestic Relations Order 

(“QDRO”) to effectuate the division of the pension plan in accordance with the divorce 

decree. The QDRO was filed several years later, in December 2009. 

{¶ 5} In January 2011, Mr. Hawkins filed a Civ.R. 60(B) motion for relief from 

judgment, in which he argued that the final decree of divorce did not “accurately reflect the 

agreement of the parties” at the time of the divorce. He acknowledged, however, that the 

QDRO “reflect[ed] the decree language which was erroneously entered;” he asserted that the 

QDRO was “a perpetuation of the error contained in the final decree.” 

{¶ 6} The trial court conducted a pre-trial conference with respect to the motion 

for relief from judgment and permitted the parties to file “written response[s]” with respect 

to the motion. After the parties had done so, the trial court overruled the motion for relief 

from judgment, finding that the motion was untimely and that Mr. Hawkins failed to raise a 

meritorious defense to the judgment. 

Argument

{¶ 7} Mr. Hawkins raises one assignment of error on appeal, which states: 

The trial court erred by failing to grant relief pursuant to Civil 

Rule 60B to correct an improper method of calculating plaintiff’s 
4

retirement benefits which resulted from an improper recitation in the 

divorce decree and subsequent QDRO which fails to reflect the 

agreement set forth in the record at the final hearing in this mater and 

which continues to provide an award of retirement benefits to plaintiff 

which is excessive and which deprives plaintiff of his equitable 

retirement benefits. 

{¶ 8} Mr. Hawkins contends that the trial court erred in overruling his motion for 

relief from judgment. 

Standard of Review

{¶ 9} “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 Elec., Inc. v. ARC Industries, Inc., 47 

Ohio St.2d 146, 351 N.E.2d 113 (1976), at paragraph two of the syllabus. 

{¶ 10} The grounds for relief enumerated in Civ.R. 60(B) are “(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 
5

longer equitable that the judgment should have prospective application; or (5) any other 

reason justifying relief from the judgment.” The rule further provides that a motion for 

relief from judgment must 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} A Civ.R. 60(B) motion for relief from judgment “cannot be used as a 

substitute for a timely appeal or as a means to extend the time for perfecting an appeal from 

the original judgment.” Key v. Mitchell, 81 Ohio St.3d 89, 91, 689 N.E.2d 548 (1998); 

Harris v. Anderson, 109 Ohio St.3d 101, 2006-Ohio-1934, 846 N.E.2d 43, ¶ 9; Risner v. 

Cline, 2d Dist. Champaign No. 2003-CA-24, 2004-Ohio-3786, ¶ 5.. Any claims or 

arguments that could have been raised in a timely appeal are precluded from being raised in 

a subsequent Civ.R. 60(B) motion, because it is the function of the appellate court to correct 

legal errors committed by the trial court. Key at 91; Seitz v. Seitz, 2d Dist. Montgomery No. 

23698, 2010-Ohio-3655, ¶ 7. 

{¶ 12} Motions for relief from judgment under Civ.R. 60(B) are addressed to the 

sound discretion of the trial court, and the court’s ruling will not be disturbed on appeal 

absent a showing of abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 

1122 (1987); National City Mtge. Co. v. Johnson & Assoc. Financial Services, Inc., 2d Dist. 

Montgomery No. 21164, 2006-Ohio-2364, ¶ 11. To constitute an abuse of discretion, the 

trial court’s decision must be unreasonable, arbitrary, or unconscionable. Blakemore v. 

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

Grounds for Civ.R. 60(B) Relief in this Case

A. Civ.R. 60(B)(1)
6

{¶ 13} In his motion for relief from judgment and in his memorandum to the trial 

court, Mr. Hawkins’s argument focused on Civ.R. 60(B)(1), which permits relief for 

“mistake, inadvertence, surprise or excusable neglect.” In his memorandum and an attached 

affidavit, Mr. Hawkins asserted that (1) he discovered the mistake with respect to the 

division of the pension plan when he initially reviewed the divorce decree, but was assured 

that the mistake would be corrected, (2) he “was presented with a faxed copy of the signature 

page unattached to the divorce decree,” which he signed, believing that his signature was 

necessary to effectuate the correction of the decree to reflect “what was said at the final 

hearing,” and (3) he did not realize that the error had not, in fact, been corrected until Mrs. 

Hawkins applied to receive her portion of the retirement benefits. The documents presented 

by Mr. Hawkins with his Civ.R. 60(B) motion did not state who assured him that the 

mistake would be corrected or who presented him with the unattached signature page after 

the divorce decree had been signed. Mr. Hawkins argued that the divorce decree “fail[ed] 

to accurately reflect the agreement of the parties,” was “erroneous,” and contained an 

“uncorrected error.” 

{¶ 14} In overruling the motion, the trial court concluded that Mr. Hawkins had 

“not raised a meritorious defense to the judgment nor ha[d] he provided sufficient grounds 

justifying his request. Further, his motion is not timely * * *.” 

{¶ 15} Mr. Hawkins’s argument in the trial court was clearly based on Civ.R. 

60(B)(1) and, to obtain relief on that basis, he was required to file a Civ.R. 60(B) motion 

within one year from the judgment. Although Mr. Hawkins admits that the alleged 

discrepancy between the agreement of the parties and the divorce decree was apparent to him 
7

when the decree was filed, he did not appeal from the divorce decree and did not seek relief 

from the judgment for over five years. His motion for relief from judgment also was not 

filed within one year of the filing of the QDRO (which itself had not been appealed). 

{¶ 16} Mr. Hawkins inaccurately asserts that “[w]hat constitutes a timely filing is 

based solely on the facts of the case and is at the discretion of the court.” Civ.R. 60(B) 

expressly provides that a motion for relief from judgment made for reasons (1), (2) and (3) 

must be filed “not more than one year after the judgment, order or proceeding was entered or 

taken.” It is not within the trial court’s discretion to extend this time limit. Civ.R. 6(B); In 

re Taaffe, 11th Dist. Trumbull No. 96-T-5616, 1997 WL 799501, * 4, fn. 1 (“Civ.R. 6(B) 

prohibits a court from extending the time limit fixed by Civ.R. 60(B).”). The trial court did 

not err in overruling Mr. Hawkins’s motion, because it was untimely. 

{¶ 17} Mr. Hawkins’s brief and the exhibits attached thereto (which were not 

presented in the trial court) attempt to establish that the decree and the QDRO are incorrect 

and that Mrs. Hawkins is receiving pension payments far in excess of what she was entitled 

to receive under the parties’ agreement. Because Mr. Hawkins did not appeal from the 

divorce decree or the QDRO or seek relief from judgment within the time provided by 

Civ.R. 60(B)(1), we need not discuss the alleged discrepancies between the agreement that 

was read into the record and the divorce decree. 

{¶ 18} We also reiterate that a party is not permitted to use a Civ.R. 60(B) motion 

as a substitute for an appeal. Key, 81 Ohio St.3d 89, 91, 689 N.E.2d 548. Because the 

alleged error was apparent to Mr. Hawkins when the decree of divorce was filed, he could 

have sought relief at that time by filing an appeal. 
8

{¶ 19} The trial court did not abuse its discretion in overruling Mr. Hawkins’s 

motion for relief from judgment. 

B. Civ.R. 60(B)(4) and (5)

{¶ 20} On appeal, Mr. Hawkins raises additional bases for relief from judgment, 

citing Civ.R. 60(B)(4) and (5). We will address these arguments briefly, although it is well 

settled that a party may not raise a new argument for the first time on appeal. Ihenacho v. 

Ohio Inst. of Photography & Technology, 2d Dist. Montgomery No. 24191, 

2011-Ohio-3730, ¶ 70; Rieger v. Montgomery Cty., 2d Dist. Montgomery Nos. 23145, 

23162, 2009-Ohio-4125, ¶ 18. 

{¶ 21} Civ.R. 60(B)(4) provides for relief from a judgment where “it is no longer 

equitable that the judgment should have prospective application;” it “was designed to 

provide relief to those who have been prospectively subjected to circumstances which they 

had no opportunity to foresee or control.” L.N.V. Corp. v. Edgar, 12th Dist. Butler No. 

CA2011-10-190, 2012-Ohio-1899, ¶ 21, citing Pumper v. Pumper, 8th Dist. Cuyahoga No. 

93916, 2010-Ohio-4131, ¶ 15. In this case, it is apparent that Mr. Hawkins noticed the 

alleged error shortly after the judgment was filed, because he claims to have executed a new 

signature page in an attempt to effectuate a correction of the alleged error. He does not 

claim to have taken any other steps to ensure that the alleged error was corrected. We 

cannot conclude that Mr. Hawkins had “no opportunity to foresee or control” the alleged 

problem with the judgment. 

{¶ 22} Civ.R. 60(B)(5) permits relief “for any other reason justifying relief from 

the judgment.” This avenue of relief is “only to be used in an extraordinary and unusual 
9

case when the interests of justice warrants it.” Adomeit v. Baltimore, 39 Ohio App.2d 97, 

105, 316 N.E.2d 469 (8th Dist. 1974). Mr. Hawkins argues that because, in his 

understanding, the decree and QDRO do not reflect the parties’ intent in 2005, this is the 

unusual case where justice warrants setting aside both the decree and the QDRO. As the 

staff notes to Civ.R. 60(B)(5) comment, “[t]he grounds for invoking this catch-all provision 

* * * should be substantial * * * [such as] a judgment vitiated by a fraud on the court[;] * * * 

for example, the bribing of a juror, not by the adverse party, but by some third person.” 

{¶ 23} Civ.R. 60(B)(5) will apply only when one of the specific provisions 

enumerated in Civ.R. 60(B)(1)-(4) does not apply. Strack v. Pelton, 70 Ohio St.3d 172, 174, 

637 N.E.2d 914 (1994); it should not be used as a substitute for any of the other more 

specific provisions of Civ.R. 60(B), where the one-year time limit has expired. 

Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 66, 448 N.E.2d 1365 (1983); Stairwalt v. 

Stairwalt, 2d Dist. Champaign No. 2007 CA 30, 2008-Ohio-2597, ¶ 14. Because Mr. 

Hawkins’s argument is clearly based on an alleged mistake in the judgment, which falls 

under Civ.R. 60(B)(1), he cannot seek relief under Civ.R. 60(B)(5). 

{¶ 24} The assignment of error is overruled. 

Conclusion

{¶ 25} The judgment of the trial court will be affirmed. 

 . . . . . . . . . . 

GRADY, P.J. and HARSHA, J., concur. 

(Hon. William H. Harsha, Fourth District Court of Appeals, sitting by assignment of the 

Chief Justice of the Supreme Court of Ohio). 
10

Copies mailed to: 

Samuel J. Petroff 

Douglas W. Geyer 

Samantha L. Berkhofer 

Hon. Thomas J. Capper