[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 Valle y Pike, Springfield, Ohio 45504 Attorneys for Defendant-Appellant

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FROELICH, J. {¶ 1} Phillip Hawkins appeals from a judg ment of the Clark County Court of Common Pleas, Domestic Relations Divi sion, 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 distri bution 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 Hawkin s 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 Sout heast and Southwest Areas Pension Fund (“the pension plan”), and the parties had been ma rried for the entire period of Mr. Hawkins’s employment, by which he wa s 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 Septem ber 2004 [sic], has earned him 16.383 years of contributory credit. Plaintiff, Karen S. Hawkins shall receive a fifty3 percent (50%) interest in sa id pension plan, said bene fit to be determined as

follows: date of Defenda nt’s hire through Sept ember 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 severa l 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 th e 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 conducte d a pre-trial conference with respect to the motion for relief from judgment and per mitted the parties to file “wr itten response[s]” with respect to the motion. After the partie s 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’s4 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 unde r one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made with in 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 pa ragraph two of the syllabus. {¶ 10} The grounds for relief enumerated in Civ.R. 60(B) are “(1) mistake, inadvertence, surprise or excusable neglec t; (2) newly discovered evidence which by due diligence could not have been discovered in time to move fo r a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrin sic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, re leased or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no5 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 fro m 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 th e function of the appella te 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 c ourt, and the court’s ruling w ill 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, arbitr ary, 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) moti on 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 c ourt concluded that Mr. Hawkins had “not raised a meritorious defense to the j udgment nor ha[d] he provided sufficient grounds justifying his request. Further, his motion is not timely * * *.” {¶ 15} Mr. Hawkins’s argument in the tr ial court was clear ly 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. Alt hough Mr. Hawkins admits that the alleged discrepancy between the agreement of the par ties and the divorce decree was apparent to him7 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 pa yments 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 alle ged 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 a dditional bases for re lief from judgment, citing Civ.R. 60(B)(4) and (5). We will addre ss these arguments briefl y, 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 fro m a judgment where “it is no longer equitable that the judgment should have pros pective application;” it “was designed to provide relief to those who have been prospec tively 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 f iled, 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. Hawk ins had “no opportunity to fore see 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 unusual9 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 asid e 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 j udgment vitiated by a fra ud on the court[;] * * * for example, the bribing of a juror, not by th e 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 s eek 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