[Cite as Whited v. Whited , 2020-Ohio-5067.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

MICHAEL W. WHITED, : Plaintiff-Appellant, : Case No. 19CA26

vs. : DONNA L. WHITED, : DECISION AND JUDGMENT ENTRY

Defendant-Appellee. :

_______________________________________________________________ __ APPEARANCES: William B. Summers, Parkersburg, West Virginia, for Appellant. 1 Andrew S. Webster, Belpr e, Ohio, for Appellee.

CIVIL CASE FROM COMMON PLEAS COURT, GENERAL DIVISION DATE JOURNALIZED: 10-19-20 ABELE, J. {¶ 1} This is an appeal from a Washington County Common Pleas Court d enial of a Civ.R. 60(B) motion for relief fro m judgment filed by Michael W . Whited, plaintiff below and appellant herein. A ppellant assigns two e rrors for review:

FIRST ASSIGNMENT OF ERROR:

“THE LOWER COURT ERRED IN ITS DETERMINATION THAT THE RULE 60(B) FROM THE NOVEMBER 15, 2019 MAGISTRATE’S DECISION, AND SUBSEQUENT RATIFICATION ON THE SAME DAY DO NOT APPLY

1 Different counsel represented appellant during the trial cour t proceedings.WASHINGTON, 19CA26 2 BECAUSE RULE 60(B)(5)’S LANGUAGE STATE [SIC] THAT IT MAY BE BROUGHT AT ANY TIME, AND WHEN THE NEW PROCEEDING HEREIN IS BASED ON THE SAME CASE NUMBER, SAME FACTS, AND SAME ORDER FROM THE ORIGINAL FILING, AND THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO HOLD A HEARING ON THE MOTION BASED ON THE OPERATIVE FACTS ALLEGED BY THE PLAINTIFF 2 .”

SECOND ASSIGNMENT OF ERROR: “THE LOWER COURT ERRED IN DENYING THE RULE 60(B) BASED ON THE APPELLANT’S NEW FACTUAL ALLEGATIONS FROM 2003 WHEN THE APPELLEE’S MOTION RELATES BACK TO THE ORIGINAL ORDER AND IS IN THE SAME CASE WITHOUT CONSIDERING ANY NEW DEVELOPMENTS AS TO IF THE ORDER IS STILL VALID OR JUST IN LIGHT OF THOSE ALLEGATIONS, AS THIS WOULD ENTITLED [SIC] THE APPELLANT TO RELIEF UNDER RULE 60(B)(1),(2),(3), OR (4) AS THE NEW PROCEEDING HAS BEEN BROUGHT WITHIN ONE YEAR, AND IS NO LONGER EQUITABLE GIVEN THE CIRCUMSTANCES.” {¶ 2} Appellant and Donna Whited, defe ndant below and appellee herein , married in

1974 and have three children. O n December 10, 1999, the trial court issued a judgment that terminated the parties’ marriag e and approved their Separation Agreement, which included, inter alia, a provision that “[e]ach p arty shall get 50% of the Gener al Electric Pension by means of a QDRO between the parties.” {¶ 3} On July 31, 2003, appellant filed a motion to modify parental r ights and responsibilities and sought to be d esignated resi dential parent of their minor child because appellee had “confessed to havin g sexual intercourse with the p arties’ [then emancipated] son,

2 We observe that appellant’s brief does not comply with Appell ate Rule 16(2): “The appellant shall include in its brief, under the headings and in the order indic ated, all of the following: * * * (2) A table of cases alphabetically arranged, statutes, and other authorities cited, with references to the pages of the brief where cited.”WASHINGTON, 19CA26 3 [W], 3 beginning when the child was twelve and has recently threatene d to kill [W’s] girlfriend and her family along with killing their son [W]. The Mother is currently hospitalized in the Athens Mental Health Facility.” The trial court designated app ellant as W’s resi dential parent and legal custodian, effective July 31, 2003. {¶ 4} On June 2, 2019, appellee filed a motion to implement the divis ion of appellant’s retirement benefits. Appellee pointed out that the December 10 , 1999 decree required the division of appellant’s General E lectric retirement benefits fr om his date of employment to December 10, 1999. Appellee further stated that, since the fil ing of the decree, no action has been taken to implement the cour t’s order. Thus, appellee soug ht an order: (1) to prohibit appellant from taking any action to jeopardize appellee’s inter est in appellant’s retirement benefits, and (2) to require a ppellant to coope rate with appell ee to divide the retirement benefits per the court’s prior entry. {¶ 5} On August 2, 2019, the magistrate ordered the parties to cooper ate in the issuance of a Qualified Domestic Relati ons Order (QDRO) in order to effe ctuate the retirement benefits provision. On August 15, 2019, the magistrate determined that the QDRO covered the retirement benefit period from October 14, 1974 to August 25, 1 999, and that the QDRO be filed within thirty days. {¶ 6} On October 21, 2019, appellant file d a motion, pursuant to Civ. R. 60(B)(2),(3), and (5), and requested a hearing on the issue of whether newly disc overed evidence, fraud, misconduct, misrepresentation or any other reason should preven t the operation of the QDRO.

3 In this opinion we substitute “W” for the name of the parties ’ son.WASHINGTON, 19CA26 4 On November 4, 2019, appellant reque sted a stay of the QDRO’s e nforcement in light of his pending Civ.R. 60(B) motion. O n November 15, 2019, the trial c ourt overruled appellant’s objection to the QDRO and denie d his Civ.R. 60(B) motion. This appeal followed.

I. {¶ 7} For ease of discussion, we addre ss appellant’s assignments of e rror in reverse order. In his second assignment of e rror, appellant asserts that “[t] he lower court erred in denying the Rule 60(B) based on the Appella nt’s new factual allegations fro m 2003 when the Appellee’s Motion relates back to the original Order and is in the same ca se without considering any new developments as to if the Order is still valid or just in light of those allegations, as this would entitled [sic] the Appellant to relief under Rule 60(B)(1), (2) , (3), or (4), as the new proceeding has been brought within one year , and is no longer equitable gi ven the circumstances.” 4 {¶ 8} Generally, Civ.R. 60(B) strikes a balance between the need for final judgments and the need for courts to vacate their orders to further justice a nd fairness. Doddridge v. Fitzpatrick , 53 Ohio St.2d 9, 12, 371 N.E.2d 214 (1978). “‘In an appeal f rom a Civ.R. 60(B) determination, a review ing court must determine whether the tri al court abused its discretion.’”

Harris v. Anderson , 109 Ohio St.3d 101, 2006-Ohio-1934, 846 N.E.2d 43, ¶ 7, quoti ng State ex rel. Russo v. Deters, 80 Ohio St.3d 152, 153, 684 N.E.2d 1237 (1997); Britton v. Britton , 4th

4 As a procedural matter, we observe that appellant filed his m otion under Civ.R. 60(B)(2), (3), and (5). A general principle of appellate jurisdiction is that a party m ay not present an argument on appeal that it failed to raise in the trial court. Goldfuss v. Davidson , 79 Ohio St.3d 116, 121, 679 N.E.2d 1099 (1997); see also State v. Glaros , 170 Ohio St. 471, 166 N.E.2d 379 (1960), paragraph one of the syllabus (“It is a general rule that an appellate court will not consider any error which counsel * * * could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the tria l court”); accord State v. Wintermeyer, 158 Ohio St. 3d 513, 2019-Ohio-5156, 145 N.E.3d 278, ¶ 10. The refore, we do not address arguments concerning Civ.R. 60(1) or (4) because they are not p roperly before this court.WASHINGTON, 19CA26 5 Dist. Washington No. 18CA10, 2019-Ohio-2179, ¶ 23. Under this highly deferential standard, an appellate court’s review is limited to determining whether t he trial court acted unreasonably, arbitrarily, or unconscionably; in doing so, the appellate cour t may not simply substitute its judgment for that of the trial court. See Dunford v. Dunford, 4th Dist. Gallia No. 13CA7, 2014-Ohio-617, ¶ 3, citing Young v. Young , 4th Dist. Lawrence No. 11CA19, 2012-Ohio-3480, ¶ 7. {¶ 9} Civ.R. 60(B) provides: On motion and upon such terms as are just, the court may reliev e a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadverten ce, surprise or excusable negle ct; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial unde r Rule 59(B); (3) fraud (wheth er heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment h as been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or othe rwise vacated, or it is no longer equitable that t he judgment should have prospec tive application; or (5) any other reason justifying relief from the judgment. The motion shall 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 tak en. A motion under this subdivision (B) does not affect the finality of a ju dgment or suspend its operation. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules. {¶ 10} To prevail on a Civ.R. 60(B) moti on, a movant must demonstrate: (1) a meritorious defense or claim to present if relief is granted; ( 2) entitlement 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 gr ounds 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. Bank of Am., N.A., Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1030, ¶ 10-11, citing GTE Automatic Elec. Inc. v. ARCWASHINGTON, 19CA26 6

Industries , Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 ( 1976), paragraph two of the syllabus. “These requirements are indepe ndent and in the conjunctive; thu s the test is not fulfilled if any one of the requirements is not met.” Strack v. Pelton , 70 Ohio St.3d 172, 174, 637 N.E.2d 914 (1994); Rose Chevrolet, Inc. v. Adams , 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988). We also note that “[r]elief from a fina l judgment should not be granted unless the party seeking such relief

makes at least a prima facie showing that the ends of justice will be better served by sett ing the judgment aside.” Rose , supra , at 21. Additionally, a court is not required to conduct a he aring on a Civ.R. 60(B) motion for relief from judgment unless the mo vant has supplied the court with operative facts that warrant relief from the judgment. McFall v. McFall , 9th Dist. No. 26418,

2013-Ohio-2320. {¶ 11} In the case sub judice, appella nt asserts that appellee’s crimi nal conduct occurred, unbeknownst to him, during their marriage. Appellant contends that after he discovered this conduct in 2003, he could not file a Civ.R. 60(B)(1), (2), or ( 3) motion because the case had been closed and no actual enforceable judgment existed against him. Thus, appellant argues, the event from which we should measure timeliness is the 2019 QDRO. Furthermore, appellant does not set forth specific evidence of grounds for relief unde r Civ.R.60(2) and (3), but instead argues that based on “new eviden ce being brought after the new proceeding has started * * * a new proceeding based on the same order should hear the new deve lopments on the case when

this is the same case.” {¶ 12} As we indicated above, Civ.R. 60(B) provides: “The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more th an one year after the judgment, order or proceeding was entered or taken.” Once again, appella nt contends that he had noWASHINGTON, 19CA26 7 “judgment” from which to seek relief until the trial court’s Ja nuary 3, 2019 QDRO. Therefore, appellant argues that his moti on is timely because a “new proce eding” exists based on the same case number, facts, and order from 1999. {¶ 13} The trial court, however, reas oned that appellant learned in 2 003 of the “repulsive, immoral and criminal actions of the Defendant havin g perpetrated severe physical abuse of the parties’ minor ch ild and subsequently being convic ted of the same.” Civ.R. 60(B) requires a motion filed under (1),(2), or (3) to be filed withi n one year of the original judgment. Appellant, however, filed his mo tion for relief from judgment t wenty years after the original 1999 judgment and sixteen years af ter he learned of appellee’s criminal conduct. Civ.R. 60(2) and (3) speak to newly discove red evidence and fraud, and impos e a one-year limitation from the date of the judgment to r aise these issues. Strack , supra

. {¶ 14} We also disagree with appellant’s contention that the ODRO cons titutes a “new proceeding” and constitutes a “final judgment.” “[A] QDRO is d ifferent from the usual court order. A QDRO is an order that ‘creates or recognizes the exis tence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan.’” State ex rel. Sullivan v. Ramsey , 124 Ohio St.3d 355, 2010-Ohio-252, 922 N.E.2d 214 , ¶ 18, citing Employee Retirement Income Security Act of 1974, Section 1056(d)(3)(B)(i)(l), Title 29, U.S. Code, and Sec tion 414(p)(1)(A)(i), Title 26, U.S. Code. “The QDRO implements a trial court’s decision of ho w a pension is to be divided

incident to divorce or dissolution.” Blaine v. Blaine, 4th Dist. Jackson No. 10CA15, 2011-Ohio-1654, at ¶ 20, citing Wilson v. Wilson , 116 Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16, ¶ 7. A QDRO “does not in any way constitute a furth er adjudication on the merits ofWASHINGTON, 19CA26 8 the pension division, as its sole purpose is to implement the t erms of the divorce decree. Therefore, it is the decree of divorce that constitutes the fin al determination of the court and

determines the merits of the case.” Wilson , at ¶ 16. For example, in a Fifth District case, the court held that the date of a QDR O journal entry was not releva nt in determining whether the motion was timely. Plant v. Plant , 5th Dist. Fairfield No. 02CA01, 2002-Ohio-3684, * 2. The court determined that the QDRO is not a judgment, but rather an implementation of a judgment. Thus, the court held that th e husband “cannot utilize a Civ.R. 60(B)(2) or (3) motion, albeit filed within one year of the QDRO,” when in fact, he is collaterally attacking the prior judgment entry/decree of divorce. Id. , at 2. We agree, and conclude that the date of the QDRO in th e case at bar is not relevant in de termining whether the Civ.R. 6 0(B) motion was timely. {¶ 15} Civ.R. 60(B) provides a litigant with a vehicle to reopen a fin al judgment as only final judgments are subject to motions for relief from judgment

. Andy Estates Dev. Corp v.

Bridal , 68 Ohio App.3d 455, 588 N.E.2d 978 (10 th Dist. 1991). Historically, a judgment is

defined as a final determination of the rights a nd parties in a n action. See also Civ.R. 54(A). Therefore, we agree with the trial court that appellant’s Civ.R .60(B)(2) and (3) motion was untimely. Instead, a substantial lapse of time between a judgm ent and a motion for relief from judgment is contemplated under Civ.R. 60(B)(4) and (5) (e.g. se e appellant’s other assignment of error). {¶ 16} Consequently, under the circumst ances present in the case sub j udice, we cannot say that the trial court’s deci sion was unreasonable, arbitrary or unconscionable and constitutes an abuse of discretion. Accordingly, based upon the foregoing reasons, we overrule appellant’s second assignment of error.WASHINGTON, 19CA26 9

II. {¶ 17} In his first assignment of error, appellant asserts that “the l ower court erred in its determination that the Rule 60( B) from the November 15, 2019 Ma gistrate’s Decision, and subsequent ratification on the same day do not apply because Ru le 60(B)(5)’s language state [sic.] that it may be brought at any time, and when the new pro ceeding herein is based on the same case number, same facts, and same Order from the original filing; and the trial court abused its discretion in refusing to hold a hearing on the Motion base d on the operative facts alleged by the plaintiff. 5 ” {¶ 18} Appellant correctly contends tha t a Civ.R. 60(B)(5) motion need not be filed within one year of the trial c ourt’s 1999 judgment. Although a ppellant’s statement is accurate, Civ.R. 60(B) does not state that a motion can be filed “at any time,” as appellant asserts in his assignment of error. Instead, the rule states that a Civ.R. 60 (B)(5) motion must be filed “within

a reasonable time.” {¶ 19} Turning to the merits of appella nt’s Civ.R. 60(B)(5) claim, tha t provision allows “[a]ny other reason justifying relief from the judgment,” and i s a “catch-all provision which reflects the inherent power of a court to relieve a person from the unjust operation of a judgment. However, the grounds for invoking the provision must be substa ntial.” Volodkevich v.

Volodkevich , 35 Ohio St.3d 152, 154, 518 N.E.2d 1208 (1988), citing Caruso-Ciresi, Inc. v.

Lohman , 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983) , paragraphs one and t wo of the syllabus. {¶ 20} Appellant points out that afte r the December 10, 1999 judgment: (1) neither party

5 Although appellant only refers to Civ.R. 60(B)(5) in his firs t assignment of error, he includes Civ.R. 60(B)(4) references in the body of his brief. As indicated abo ve, arguments not raised in the trial court are not properly before the court, and we do not address them.WASHINGTON, 19CA26 10 filed a QDRO, and (2) appellee’s ongoing crime victimized the p arties’ son. Appellant argues

that had he known about the cr iminal conduct, “the separation a greement would have been different, likely without the cr eation of a QDRO,” and this, ap pellant reasons, entitles him to Civ.R. 60(B)(5) relief. {¶ 21} In support of his argument, appellant cites Taylor v. Haven , 91 Ohio App.3d 846, 852, 633 N.E.2d 1197 (12th Dist.1993). In Taylor, a putative father filed a Civ.R. 60(B)(5) motion for relief from judgment . The court found that, althoug h Haven had a meritorious claim, to prevail under Civ.R.60(B)(5) he had to: (1) demonstrate that he did not use that provision in place of a more specific provisi on of Civ.R.60(B), and (2) show that he filed his motion within a reasonable time. Citing other court decisions that granted Civ .R. 60(B)(5) motions even after “a relatively long time,” the Twelfth District concluded that, alt hough Haven could have filed his motion under Civ.R. 60(B)(2) or (3), both of which must be file d within one year of the original judgment, “[w]e are not prepared to hold that a twelve-year int erval between a final judgment and a movant’s Civ.R. 60(B) motion is per se unreasonable.” Id. at 852. Rather, the court held that “[a] trial court should c onsider factors beyond the absolu te length of time before the movant files a Civ.R. 60(B) motion. One such factor is the burden on the nonmoving party of asserting its claim after relief has been granted. Another consideration is the movant’s degree of fault in not bringing the motion sooner.” Id. {¶ 22} In the case sub judice, although we may agree that the length o f time between a judgment and a Civ.R. 60(B)(5) mo tion should not, standing alon e, be the sole controlling factor,

we also believe that Taylor is distinguishable. Here, appe llant could have filed his motio n in 2003, or shortly thereafter, when he first learned of appellant ’s criminal conduct. Instead,WASHINGTON, 19CA26 11 appellant waited a very long time, some sixteen years, to do so . A more timely request could have provided the tr ial court with an oppor tunity to re-conside r the parties’ respective financial positions, retirement consequen ces and, if necessary, modify th e retirement benefit provision. {¶ 23} Appellant also cites Holt v. Cline , 5th Dist. No. CA-2905, 1992 WL 173368 (June 23, 1992), in support of his Civ.R. 60(B)(5) argument. In Holt , the parties never married and the

court found Cline to be the child ren’s father. Five years late r, Cline filed a Civ.R. 60(B)(4) and (5) motion to vacate the paternity judgments and averred that h e could not be the children’s father because of his vasectomy five years before the paternity finding. After paternity tests excluded Cline as the biological father, the court granted his Civ.R. 60(B)(5) motion. The Fifth District affirmed and concluded that Cline’s five-year delay to seek relief is not per se reasonable. Id. at 2. We, however, believe the Holt dissent more persuasive , especially in light of the facts present in the case at bar. The Holt dissent concluded that, because Cline knew at the time of the paternity judgment that his vasectomy rendered him incapable of being the children’s biological father, Cline should have pursued his cla im prior to the original judgment. We agree with this view. In the case at bar, appellant learned of appellee’s criminal misconduct at a much earlier time and failed to act. Also, we recognize t hat a vast difference exists between a five-year delay and a sixteen-year delay. {¶ 24} Appellant also cites a Second Di strict case in which the partie s married in 1988, had three daughters, and wife filed for divorce in the wake of sexual abuse accusations directed

at her husband. Albers v. Albers , 2d Dist. Green No. 2012 CA 41, 2013-Ohio-2352. The physician-husband, convicted of se xual battery and gross sexual imposition, lost his license to practice medicine. Id. at ¶ 2. The court concluded that, although sexual battery and gro ssWASHINGTON, 19CA26 12 sexual imposition are not defin ed as financia l misconduct crime s, because financial consequences nevertheless spring from imprisonment and are read ily apparent, husband’s voluntary criminal acts may indeed constitute financial miscond uct with respect to the allocation

of marital assets. Id. at ¶ 15. The court observed that “[n]umerous courts have held that criminal conduct by one of the pa rties to a divorce can be cons idered in making an equitable distribution of marital assets, because of the financial ramifi cations that such conduct frequently creates for the spouse.” Id. at ¶ 17. The court thus affirmed the trial court’s finding tha t, for equitable reasons, wife was entitled to more than half of the m arital assets. In the case sub judice, however, appellant did not actually allege that appelle e’s acts constituted financial misconduct, diminished the partie s’ assets or diminished appell ee’s asset contribution to the parties’ marital prope rty. Most important , appellant waited si xteen-years to raise this issue. {¶ 25} Civ.R. 60(B)(5) “reflects the inhe rent power of the court to re lieve a person from the unjust operation of a judgme nt, but the grounds for invokin g it should be substantial.” Dunford v. Dunford, 4th Dist. Gallia No. 13CA7, 2014-Ohio-617, ¶ 15, citing PHH Mtge. Corp. v. Northrup , 4th Dist. Pickaway No. 11CA6, 2011-Ohio-6814, ¶ 24, citing State ex rel. Gyurcsik v. Angelotta , 50 Ohio St.2d 345, 356, 364 N.E.2d 284 (1977), and Caruso-Ciresi, supra, at paragraph two of the syllabus. As we indicated above, however, Civ.R. 60(B)(5) is typically

reserved for actions such as fraud upon the court. For example , “[p]ursuant to Civ.R. 60(B)(5), a court in appropriate circumstances may vacate a judgment viti ated by a fraud upon the court.”

Coulson v. Coulson , 5 Ohio St.3d 12, 448 N.E.2d 809 (1983), paragraph one of the syllabus. “Where an officer of the court, e .g., an attorney, actively par ticipates in defrauding the court, then the court may entertain a Civ.R. 60(B)(5) motion for relief fro m judgment.” Id. at 15. ThisWASHINGTON, 19CA26 13 type of fraud is distinguishable from fraud committed by an adv erse party under Civ.R. 60(B)(3), which is subject to the one-year time limit applied and Civ.R. 60(B)(1)-(3). Dunford , supra, at ¶ 16, citing Still v. Still, 4th Dist Gallia No. 95CA15, 1996 WL 362259 (June 25, 1996); 2 K lein, Darling, and Terez, 2 Baldwin’s Ohio Civil Practice , Section 60:50 (2013). {¶ 26} In Dunford, the movant filed her Civ.R. 60(B) motion five years after fina l judgment. This court conclude d that the appellant raised a pot entially viable claim of fraud on

the court when she claimed that her ex-spouse’s attorney threat ened that she would be jailed if she did not sign the dissolution documents. Dunford at ¶ 19. We concluded that the trial court did not act in an unreasonable, a rbitrary, or capricious manner when it determined that the appellant failed to raise her claim within a reasonable time. Id . at ¶ 21. In the case at bar, we recognize, like the trial court, that although appellee engaged in reprehensible actions, the issue appellant raises shoul d have been raised at an earlier time. See also Becker v. Becker , 12th Dist. Butler Nos. CA98-02-031, CA 98-02-036, 1999 WL 126068 (Feb. 22, 1999)(wife’s Civ.R. 60(B) motion filed five years after the court entered the dissolution decree was untimely because she

knew of the existence of the hus band’s pension, but did nothing to ascertain its value when the parties dissolved their marriage); Rotroff v. Rotroff , 6th Dist. Fulton No. F-06-019, 2007-Ohio-2391, ¶ 15 (Civ.R. 60(B)(5 ) motion filed seven years after trial court journalized divorce decree was untimely when appellant became aware that hi s military pension was improperly divided shortly a fter the judgment entry); Tabor v. Tabor , 7th Dist. Mahoning No. 02-CA-73, 2003-Ohio-1432, ¶ 24 (Ci v.R. 60(B)motion filed almost fifteen years after divorce judgment was untimely); and Jackson v. Hendrickson, 2d Dist. Montgomery No. 21921, 2008-Ohio-491, ¶ 69, (Civ.R. 60(B)(5) motion filed thirteen yea rs after the divorce decree wasWASHINGTON, 19CA26 14 untimely). {¶ 27} A review of the record in the case sub judice reveals that the 1999 judgment terminated the parties’ marriage and the Separation Agreement s tates that “[e]ach party shall get

50% of The General Electric Pens ion by means of a QDRO between the parties.” Sixteen years after appellant learned of appe llee’s improper conduct, the mag istrate addresse d appellant’s Civ.R. 60(B) motion and stated, “Th e allegations revolve around repulsive, immoral and criminal actions of the Defendant having perpetrated severe physical abu se of the parties’ minor child and subsequently being convicted of th e same. Actions that are all eged to have occurred during the marriage and after the marriage. These incidents purportedly c ame to light in 2003, approximately 4 years after the marriage was terminated by the Court Order. In the past 16 years since the incidents came to light, Plaintiff has failed t o request this Court change its Order from 1999, until now.” The decision further noted that R.C. 31 05.171(C)(1) requires, “Except as provided in this Division or D ivision (E) of this section, t he division of marital property shall be equal.” The court noted that Division (E) does not permit a n unequal distributive award of marital property due to morally perverse or criminal behavior o f one spouse that does not rise to the level of financial malfeasance during the marriage. The de cision further stated, “There are no factors raised in the Rule 60(B) Motion that would call for a distributive award at the time of the parties’ divorce.” As for appellant’s objection to the ent ry of the QDRO, the magistrate found it “untimely and not appropria tely before this Court. Re s judicata would prohibit the Court from once again hearing an objection to the enforcement o f an Order that was rendered in

1999.” {¶ 28} In the case sub judice, the tri al court adopted the magistrate’ s decision and, afterWASHINGTON, 19CA26 15 our review, we find no abuse of d iscretion. As the trial court observed, appellant seeks relief from the terms of the 1999 Separa tion Agreement. Therefore, he must demonstrate that he filed his Civ.R. 60(B)(5) motion within a reasonable time. The trial court finalized the judgment in 1999, appellant learned of appell ee’s misconduct in 2003, and a ppellant filed his motion for relief from judgment on October 21, 2019, not within a “reasona ble time.” Here, we find no

abuse of discretion. The trial court’s decision to deny Civ.R. 60(B)(5) relief is not unreasonable, arbitrary, or unconscionable. {¶ 29} Of course, as with all abuse of d iscretion standard of review c ases, it is

conceivable that some members of this court or other courts may have viewed this matter differently had they been charged with making the initial deter mination. Nevertheless, this

deferential standard of review vests a trial court with broad d iscretion and may not be disturbed unless a court acts unreasonably, arbitrarily or unconscionably . Here, based upon the facts and circumstances present in the case at bar, we conclude that the trial court did not act unreasonably, arbitrarily or unconscionably. Ins tead, we believe that the tr ial court had a s ound basis on which to deny appellant’s r equest for relief from judgment. {¶ 30} Accordingly, based upon the foregoing reasons, we overrule appe llant’s assignments of error and affirm t he trial court’s judgment.

JUDGMENT AFFIRMED.WASHINGTON, 19CA26 16

JUDGMENT ENTRY It is ordered that the judgment be affirmed and t hat appellee r ecover of appella nt the costs

herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special ma ndate issue out of this Court di recting the Washington County Common Pleas Court to carry these judgments into executi on. A certified copy of this entry shall constitute that mandate pu rsuant to Rule 27 of the Rules of Appella te Procedure. Smith, P.J. & Hess, J.: Conc ur in Judgment & Opinion

For the Court

BY: Peter B. Abele, JudgeWASHINGTON, 19CA26 17

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a fina l judgment entry and the time period for further appeal commences from the date of filin g with the clerk.