[Cite as Baronzzi v. Gamble, 2023-Ohio-894.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

COLUMBIANA COUNTY

CELESTE M. BARONZZI,

Plaintiff-Appellant/Cross-Appellee,

v.

JOHN E. GAMBLE,

Defendant-Appellee/Cross-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 2021 CO 32

Appeal from the

Court of Common Pleas, Domestic Relations Division, of Columbiana County, Ohio

Case No. 2019 DR 00056

BEFORE:

Mike Powell, Robert A. Hendrickson, Matthew R. Byrne, Judges.

JUDGMENT:

Affirmed in part, Reversed in part, and Remanded.

Atty. Tracey A. Laslo; Atty. Michael Partlow, 325 E. Main Street, Alliance, Ohio 44601, for 

Plaintiff-appellant and cross-appellee.

Roth, Blair, Roberts, Strasfeld & Lodge, and Atty. Christopher P. Lacich, 100 E. Federal 

Street, Suite 600, Youngstown, Ohio 44503, for Defendant-appellee and cross-appellant.
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Dated: March 10, 2023

BYRNE, J.

{¶1} Appellant, Celeste M. Baronzzi, and Cross-Appellant, John E. Gamble, who 

were previously married, obtained a final decree of divorce from the Columbiana County 

Court of Common Pleas, Domestic Relations Division.1 John later filed a motion to 

terminate or modify the spousal support terms set forth in the divorce decree. Celeste 

soon thereafter filed a Civ.R. 60(B) motion for relief from the final decree of divorce. 

Celeste's motion sought equitable division of a payout of John's unused hours of sick and 

vacation leave time ("sick/vacation benefits") he received upon his retirement, after the 

divorce decree became final. The domestic relations court denied both parties' motions 

in a single decision. Celeste and John both appealed from the domestic relations court's 

order denying their respective motions. For the reasons described below, we affirm the 

domestic relations court's denial of Celeste's Civ.R. 60(B) motion, reverse the trial court's 

finding that the sick/vacation benefits constituted income to John, and remand for further 

proceedings with respect to John's motion to terminate or modify the terms of spousal 

support.2

I. Factual and Procedural Summary

A. The Divorce and the Divorce Decree

1. For the purpose of clarity, appellant and appellee/cross-appellant will be referred to by their first names. 

See Nationwide Ins. Co. v. Alli, 178 Ohio App.3d 17, 2008-Ohio-4318, 896 N.E.2d 742, ¶ 3 (7th Dist.).

2. The then-Chief Justice of the Ohio Supreme Court assigned this panel—three elected judges of the 

Twelfth District Court of Appeals—to preside in the Seventh District Court of Appeals for the purposes of 

hearing this appeal and concluding any proceedings. See Ohio Constitution, Article IV, Section 5(A)(3); 

Supreme Court of Ohio Guidelines for Assignment of Judges, Section 501(A)(1).
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{¶2} Celeste and John married in 1993. Two children were born of the marriage, 

both of whom are now emancipated. Celeste filed for divorce in 2019. 

{¶3} In August 2020, the domestic relations court issued a decree of divorce 

dividing the parties' marital property. Among other terms, the decree provided that John 

would pay Celeste $3,300 per month in spousal support. The court based the spousal 

support award on a disparity in income. Specifically, at the time, John earned $130,000 

per year through his occupation as the chief assistant prosecutor for the Columbiana 

County Prosecutor's Office. Celeste, on the other hand, had never earned more than 

$12,000 per year during the marriage. Celeste also had limited income potential and 

medical issues.

B. Loss of Election, Sick/Vacation Benefits Payout, and Post-Decree Motions

{¶4} During the time the divorce was pending, John ran as a candidate for 

Columbiana County Prosecuting Attorney. The election, which was contested, occurred 

in November 2020, two months after the court issued the final divorce decree. John lost 

the election to another candidate.

{¶5} In December 2020, John moved to terminate or modify the spousal support 

award set forth in the divorce decree, based on an anticipated change in income. John 

noted his election loss and indicated that he intended to retire from his employment with 

the Columbiana County Prosecutor's Office. 

{¶6} In February 2021, Celeste moved for relief from judgment—that is, relief 

from the divorce decree—pursuant to Civ.R. 60(B). Celeste alleged that John had 

received approximately $96,000 upon his retirement from the prosecutor's office, which 

monies represented a payout of John's sick/vacation benefits. Celeste argued that the 
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sick/vacation benefits were earned during the marriage, were marital property, and were 

subject to equitable division. Celeste claimed that John, in violation of R.C. 3105.171(E), 

willfully failed to disclose the existence of the sick/vacation benefits during the divorce. 

{¶7} Civ.R. 60(B) permits relief from judgment when one or more scenarios 

described in several subsections of the rule—that is, Civ.R. 60(B)(1) to (5)—are satisfied. 

Celeste identified two subsections that she argued applied. First, Celeste sought relief 

from judgment under Civ.R. 60(B)(2), which allows relief from judgment based on newly 

discovered evidence. Celeste argued that she had no way of discovering the 

sick/vacation benefits prior to the final decree because John failed to reveal the 

sick/vacation benefits in response to various discovery requests related to his 

employment benefits. Celeste argued that John provided evasive or vague discovery 

responses. Celeste further argued that John failed to reveal the sick/vacation benefits in 

his affidavit of property or affidavit of income and expense.

{¶8} Next, Celeste argued she possessed grounds for relief from judgment under 

Civ.R. 60(B)(3), which allows for relief from judgment based on fraud, misrepresentation, 

or other misconduct. In this regard, Celeste stated that John was a licensed attorney, 

that he was aware of his duty to disclose all marital assets, and that he intentionally 

concealed the sick/vacation benefits during the divorce.

C. Post-Decree Motions Hearing

{¶9} The parties appeared before the domestic relations court for a hearing. At 

the start of the hearing, the domestic relations court noted for the record that the parties 

had agreed during pre-hearing discussions that the amount in dispute concerning John's 

sick/vacation benefits payout was $96,102.90. The parties further agreed that John had 
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received approximately $50,000 of that amount after ordinary payroll deductions. 

1. Testimony of John Gamble

{¶10} John testified that he was previously employed as the chief assistant 

prosecuting attorney of the Columbiana County Prosecutor's Office. The elected 

prosecutor decided not to run for reelection, and John became his political party's 

candidate for prosecutor. After he lost the election to another candidate, John knew he 

would not be able to keep his job due to the bitterness of the election. He decided to 

retire from the prosecutor's office. His last day working at the prosecutor's office was 

December 31, 2020. 

{¶11} John testified that while the divorce was ongoing he had never considered 

the sick/vacation benefits as an asset with value. He knew he had the benefits but 

understood them simply as ensuring a stream of income if he was sick or if he took 

vacation. John conceded that he received statements at work that indicated the amount 

of sick/vacation time that he had accrued. However, the statements only indicated the 

number of hours he had available. The statements did not specify what the accrued hours 

were worth monetarily, and did not indicate their monetary value as a payout at retirement. 

{¶12} John testified he first realized he was entitled to a cash payout for his 

unused sick/vacation benefits when the office manager came into his office sometime in 

December 2020, after he had announced his retirement. The officer manager told him 

he was going to get a "severance check." John asked her the amount. Because the 

office door was open, she whispered $90,000. So that he would not have to repeat that 

figure out loud, he wrote "9" with a question mark on it. He believed she might have 

meant $9,000. She said no and wrote out the figure. 
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{¶13} John testified that after leaving the prosecutor's office he found new 

employment as an assistant law director with East Liverpool, Ohio, and as a solicitor with 

the village of Wellsville, Ohio. His new combined salary between these two jobs was 

$47,000. Thus, John was earning approximately $83,000 less per year than he had 

earned when he was chief assistant prosecuting attorney. 

2. Office Managers' Testimony

{¶14} Celeste called the former and current office managers of the prosecutor's 

office to testify. In summary, their testimony revealed that sick leave and vacation day 

benefits could not be cashed out while an employee was still employed. Instead, those 

benefits were available to ensure that an employee's stream of income continued while 

the employee was either out sick or on vacation.

{¶15} The office managers further explained that sick/vacation benefits could only 

be paid out in cash upon separation from employment. Employees who quit or otherwise 

did not retire from the office were entitled to payout of their unused vacation time, but not 

their unused sick time. Employees who retired, on the other hand, were entitled to 

payouts for both unused sick time and unused vacation time. Employees were entitled 

to payout of all unused vacation hours, up to a maximum number of hours. The amount 

paid for sick time was based on a statute. The office managers testified that they provided 

employees with a written statement of the status of their accrued sick/vacation hours 

approximately 5-10 times a year. 

{¶16} The current office manager testified that after John announced his 

retirement, she provided him with a form so that he could receive a payout of his unused 

sick/vacation benefits. The manager recalled that John seemed surprised when she 
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informed him of the amount of the benefit.

3. Testimony of Celeste Baronzzi

{¶17} Celeste testified that she was aware that John had sick/vacation benefits 

while he was employed by the Columbiana County Prosecutor's Office. Celeste stated 

that during the divorce she had not asked her attorney to request how many hours of sick 

and vacation pay John had accumulated.

D. The Domestic Relations Court's Decision

{¶18} The domestic relations court issued a written decision in which it denied 

Celeste's Civ.R. 60(B) motion for relief from judgment. The court also found that John's 

motion to terminate or modify spousal support was "premature," and on that basis denied 

John's motion. We will address the domestic relations court's analysis more fully below.

{¶19} Celeste appealed, raising two assignments of error. John cross-appealed, 

raising three assignments of error.

II. Law and Analysis

A. Celeste's Appeal

{¶20} Celeste's Assignment of Error No. 1 states:

THE TRIAL COURT COMMITTED REVERS[I]BLE ERROR IN FINDING 

THAT THE $96,102.90 OF ACCUMULATED BENEFITS THAT 

APPELLEE ACCRUED DURING THE PARTIES' MARRIAGE 

CONSTITUTED INCOME TO THE APPELLEE FOR YEAR 2021 RATHER 

THAN A MARITAL ASSET.

{¶21} Celeste's Assignment of Error No. 2 states:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN HOLDING 

THAT THE APPELLEE COULD NOT HAVE CONCEALED THE $96,102.90 

IN ACCUMULATED BENEFITS BECAUSE IT WAS "COMMON 

KNOWLEDGE" THAT SUCH BENEFITS WERE AVAILABLE WHEN BOTH 

PARTIES TESTIFIED THAT THEY WERE UNAWARE OF THE 

BENEFITS.
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{¶22} Celeste does not explicitly assign as error the domestic relations court's 

denial of her Civ.R. 60(B) motion for relief from judgment. Instead, Celeste's two 

assignments of error each concern specific findings the domestic relations court reached 

in the course of its analysis of Celeste's Civ.R. 60(B) motion. The domestic relations 

court made these findings in the context of what appears to have been its application of 

the test set forth in GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 

351 N.E.2d 113 (1976).3 In GTE, the Ohio Supreme Court held that, 

[t]o 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.

Id. at paragraph two of the syllabus. Because Celeste's assignments of error both relate 

to specific elements of the GTE test, we construe Celeste's assignments of error as 

challenging not only the specific findings they separately address, but the trial court's 

denial of her Civ.R. 60(B) motion for relief from judgment. Therefore, after concluding our 

analysis of Celeste's two assignments of error, we will explain how our resolution of those 

two assignments of error affects the overall question of whether the domestic relations 

court erred in denying Celeste's Civ.R. 60(B) motion for relief from judgment.

1. Standard of Review

{¶23} "The standard of review used to evaluate the trial court's decision to deny 

or grant a Civ.R. 60(B) motion is abuse of discretion." Paczewski v. Antero Resources 

3. We say "what appears to have been" because the domestic relations court did not cite to or mention 

GTE. Nevertheless, the court appears to have applied the analysis required by GTE.
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Corp., 7th Dist. Monroe No. 18 MO 0016, 2019-Ohio-2641, ¶ 27. "Abuse of discretion 

connotes more than an error of judgment; it implies that the court's attitude was 

unreasonable, arbitrary, or unconscionable." Allstate Ins. Co. v. Wilburn, 7th Dist. 

Mahoning 21 MA 0079, 2022-Ohio-2026, ¶ 8. 

{¶24} However, in this case, Celeste's argument in Assignment of Error No. 1 

specifically concerns the domestic relations court's resolution of a legal question, namely, 

whether the sick/vacation benefits payout was post-divorce income or a marital asset. 

Because this question of law specifically relates to the first prong of the GTE test, we 

review that legal determination de novo. Wells Fargo Bank, N.A. v. Stevens, 7th Dist. 

Mahoning No. 12 MA 219, 2014-Ohio-1399, ¶ 13–18 (noting that "the overall standard for 

reviewing a ruling on a Civ.R. 60[B] motion is abuse of discretion" but applying de novo 

review to question of law relating to failure to satisfy elements of GTE test); State v. 

Kennedy, 9th Dist. Logan No. 8-19-44, 2020-Ohio-2989, ¶ 10 (noting abuse of discretion 

standard applicable to review of Civ.R. 60[B] decisions but applying de novo review to 

trial court's determination that Civ.R. 60[B] relief was not available where there were "no 

substantive grounds for relief"); U.S. Bank Natl. Assn. v. Bartlett, 11th Dist. Lake No. 

2018-L-023, 2018-Ohio-4082, ¶ 13 (noting abuse of discretion standard applicable to 

review of Civ.R. 60[B] decisions but stating that "[t]o the extent that an issue of law is 

raised in relation to such motion, it is reviewed de novo"). As a result, we will apply de 

novo review to the legal argument made in support of Celeste's Assignment of Error No. 

1, but we will apply an abuse of discretion review to the fact-based argument made in 

support of Celeste's Assignment of Error No. 2 and to the overall question of whether the 

domestic relations court erred in denying Celeste's Civ.R. 60(B) motion.
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2. First Element of GTE Test and Celeste's Assignment of Error No. 1

{¶25} The domestic relations court in its judgment entry addressed the nature of 

John's sick/vacation benefits payout. The court noted the office managers' testimony 

indicating the purpose of sick/vacation benefits was to ensure an employee's stream of 

income would be unaffected by taking time off work until those benefits were exhausted. 

The court further noted that those benefits, when used during employment, were treated 

as income earned by an active-duty employee, and taxed as such. The court found that

the sick/vacation benefits could only be used for their specified purposes during 

employment and could not otherwise be "cashed out" early while the employee remained 

employed. Instead, the benefits could only be converted to a cash payout at the end of 

employment. Based on the foregoing, the court determined that the payout of John's 

sick/vacation benefits was "income" earned after the marriage terminated and was 

therefore not a marital asset subject to equitable division. 

{¶26} Celeste contends in Assignment of Error No. 1 that the domestic relations 

court erred in construing the sick/vacation benefits payout as income to John after the 

marriage. She argues that the benefits payout was a retirement benefit that John earned 

during the marriage, and therefore it was marital property subject to equitable division.

{¶27} Though the domestic relations court did not identify the portion of the GTE

test to which the analysis described above relates, it is evident that the court's analysis 

and Celeste's Assignment of Error No. 1 concern the first element of the GTE test—that 

is, whether Celeste "has a meritorious defense or claim to present if relief [from judgment] 

is granted." GTE, 47 Ohio St.2d at paragraph two of the syllabus, 351 N.E.2d 113. 

b. Analysis
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{¶28} In divorce proceedings, "the court shall * * * determine what constitutes 

marital property and what constitutes separate property." R.C. 3105.171(B). Once the 

court has determined the nature of that property, the court must divide the marital property 

equitably between the spouses. Lunger v. Lunger, 7th Dist. Columbiana No. 16 CO 0026, 

2017-Ohio-9008, ¶ 9. Marital property includes:

(i) All real and personal property that currently is owned by 

either or both of the spouses, including, but not limited to, the 

retirement benefits of the spouses, and that was acquired by 

either or both of the spouses during the marriage;

(ii) All interest that either or both of the spouses currently has 

in any real or personal property, including, but not limited to, 

the retirement benefits of the spouses, and that was acquired 

by either or both of the spouses during the marriage* * *[.]

R.C. 3105.171(A)(3)(a).

{¶29} Multiple Ohio district courts of appeals have found that sick leave benefits 

are marital property subject to equitable division under R.C. 3105.171(A)(3)(a)(ii). 

Bergman v. Bergman, 2d Dist. Montgomery No. 25378, 2013-Ohio-715, ¶ 13; Lichtenstein 

v. Lichtenstein, 8th Dist. Cuyahoga No. 108854, 2020-Ohio-5080, ¶ 40; Young v. Young, 

10th Dist. Franklin No. 12AP-854, 2013-Ohio-2568, ¶ 16; Weller v. Weller, 11th Dist. 

Geauga No.2004-G-2599, 2005-Ohio-6892, ¶ 21; Yates v. Yates, 12th Dist. Preble Nos. 

CA2004-07-010 and CA2004-07-011, 2006-Ohio-743, ¶ 17. The rationale as described 

in these cases is that sick leave benefits, paid at retirement, are akin to deferred bonus 

payments or pension plan accumulations, which are essentially deferred compensation 

for services rendered during the marital term. See Herrmann v. Herrmann, 12th Dist. 

Butler Nos. CA99-01-006 and CA99-01-011, 2000 WL 1671045, *10 (Nov. 6, 2000); 

Lichtenstein at ¶ 40; Young at ¶ 16; Weller at ¶ 18. Multiple districts have also found that 
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the same rationale applies to accrued vacation leave benefits paid out upon retirement. 

Bergman at ¶ 13; Lichtenstein at ¶ 40; Young at ¶ 16.

{¶30} In his appellee's brief, John distinguishes the above cited cases by arguing 

that all involved claims concerning leave benefits that were raised for the first time in an 

appeal from the divorce decree. That is, John argues that the fact that this matter was 

first raised in a post-decree setting makes this a different factual circumstance rendering 

the holdings of those cases inapplicable. John does not articulate the logic behind this 

argument, other than to point out the distinguishing fact. We find no merit to John's 

argument.

{¶31} We agree with the reasoning of the foregoing authority. John had a valuable 

monetary interest in the sick/vacation benefits, which interest he acquired by working 

during the marriage. That interest constituted a benefit to him payable upon retirement. 

Thus, the sick/vacation benefits fit squarely within the definition of marital property as set 

forth in R.C. 3105.171(A)(3)(a)(ii). See Bergman at ¶ 13; Lichtenstein at ¶ 40; Young at 

¶ 16. The domestic relations court erred in holding that the sick/vacation benefits payout 

was mere post-divorce income to John. Celeste demonstrated a meritorious claim to 

present if Civ.R. 60(B) relief were granted, thus satisfying the first element of the GTE

test. GTE, 47 Ohio St.2d at paragraph two of the syllabus, 351 N.E.2d 113.

{¶32} However, because Celeste's Assignment of Error No. 1 only concerns the 

first element of the GTE test, and Celeste's Assignment of Error No. 2 concerns the 

second element of that test, we will turn to Assignment of Error No. 2 before determining 

how our holding with respect to Assignment of Error No. 1 affects the disposition of this 

case.
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2. Second Element of GTE Test and Celeste's Assignment of Error No. 2

{¶33} In the judgment entry, the domestic relations court found that Celeste failed 

to prove that John concealed the sick/vacation benefits during the divorce. In so finding, 

the court observed that it is common knowledge that public employees receive 

sick/vacation benefits and that Celeste had even admitted her knowledge of John's 

benefits. The court found that Celeste neglected to inquire into the sick/vacation benefits 

during the divorce and that her failure to do so was not equivalent to John concealing the 

benefits.

{¶34} In her Assignment of Error No. 2, Celeste argues that the domestic relations 

court ignored "undisputed facts" showing that John concealed his sick/vacation benefits 

from her during discovery in the divorce proceedings. Celeste challenges the domestic 

relation court's finding that it is "common knowledge" that public employees receive paid 

sick and vacation time. Celeste also argues that it was not her burden to uncover the 

sick/vacation benefits during discovery and cites R.C. 3105.171(E)(3), which provides 

that "[t]he court shall require each spouse to disclose in a full and complete manner all 

marital property, separate property, and other assets, debts, income, and expenses of 

the spouse."

{¶35} Though the domestic relations court did not identify the portion of the GTE

test to which the analysis described above relates, it is evident that the court's analysis 

and Celeste's Assignment of Error No. 2 concern the second element of the GTE test—

that is, whether Celeste "is entitled to relief under one of the grounds stated in Civ.R. 

60(B)(1) through (5)." GTE, 47 Ohio St.2d at paragraph two of the syllabus, 351 N.E.2d 

113. Even more specifically, Celeste's argument relates to Civ.R. 60(B)(3), which allows 
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for relief from judgment based on fraud, misrepresentation, or other misconduct.

{¶36} A domestic relations court has broad discretion in determining whether a 

spouse has failed to disclose marital property during a divorce or otherwise committed 

financial misconduct. See Plymire v. Plymire, 7th Dist. Noble No. 17 NO 0443, 2018-

Ohio-2786, ¶ 77; Carpenter v. Carpenter, 7th Dist. Noble No. 06-NO-331, 2007-Ohio1238, ¶ 14 (both cases addressing allegations of financial misconduct during the divorce 

under R.C. 3105.171[E]). 

{¶37} At the hearing, John testified that he never thought about sick/vacation 

benefits as having any value while the divorce was proceeding. He viewed these as 

benefits during his employment, which would ensure that his income would continue if he 

took sick or vacation days. John further confirmed he would not have disclosed the 

sick/vacation benefits in response to certain "catch-all" interrogatories and requests for 

production concerning his claimed separate property, his income, assets, and retirement 

benefits. John testified that he viewed those requests regarding his retirement benefits 

as relating to his public employee pension plan and testified that he had disclosed all 

matters relating to that plan.

{¶38} The domestic relation court's determination here relied in part on its 

assessment of John's credibility. The domestic relations court is in a better position than 

this court to assess credibility. See State v. Hamlett, 191 Ohio App.3d 397, 2010-Ohio6605, 946 N.E.2d 277, ¶ 24 (7th Dist.). We may find it curious that an attorney with 30 

years of experience as a public employee would be unaware that he was entitled to a 

payout of unused vacation and sick leave upon retirement. However, there is some 

support for this contention in the record. The current officer manager testified that she 
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was previously a secretary for many years at the prosecutor's office and was unaware of 

the benefit until she became the office manager in 2017.

{¶39} Regardless, the testimony and other evidence also could support the 

conclusion that John simply did not think of the sick/vacation benefits as a retirement 

asset he needed to disclose during the divorce. This would be consistent with Celeste's 

own treatment of the matter. She admitted that she was aware of John's sick/vacation 

benefits but did not request that her attorney inquire as to the hours that John had 

accumulated.

{¶40} Upon review, there is no evidence in the record that would enable us to 

conclude that the court abused its discretion in finding that John did not conceal the 

sick/vacation benefits.4 Celeste failed to provide evidence that would establish that John 

engaged in fraud, misrepresentation, or other misconduct in a manner that would allow 

her to establish a ground for relief under Civ.R. 60(B)(3).

{¶41} Likewise, Celeste has not established a ground for relief under Civ.R. 

60(B)(2), the other ground she identified in her Civ.R. 60(B) motion. Civ.R. 60(B)(2) 

allows for relief from judgment based on newly discovered evidence. The domestic 

4. Celeste argued in her Civ.R. 60(B) motion that John's actions violated R.C. 3105.171(E)(5), which 

provides that,

If a spouse has substantially and willfully failed to disclose marital property, 

separate property, or other assets, debts, income, or expenses as required 

under division (E)(3) of this section, the court may compensate the 

offended spouse with a distributive award or with a greater award of 

marital property not to exceed three times the value of the marital property, 

separate property, or other assets, debts, income, or expenses that are 

not disclosed by the other spouse.

The burden of proving a substantial and willful failure to disclose marital property under R.C. 3105.171(E)(5) 

is on the complaining spouse. See Plymire, 2018-Ohio-2786, at ¶ 79. On appeal, Celeste did not make 

her R.C. 3105.171(E)(5) argument or argue that the trial court made any error with respect to that argument. 

In any event, our analysis regarding the domestic relations court's concealment finding would seem to apply 

equally to an analysis under R.C. 3105.171(E)(5).
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relations court appears to have addressed Civ.R. 60(B)(2) in its judgment entry when it 

found that Celeste "knew of those benefits." Celeste made no argument to the contrary 

on appeal. 

3. Disposition of Celeste's Appeal

{¶42} Having addressed the issues raised by Celeste's two assignments of error, 

we turn to the question of how our resolution of those issues affects the overall question 

of whether the domestic relations court erred when it denied Celeste's Civ.R. 60(B) motion 

for relief from judgment. As mentioned above, the Ohio Supreme Court has held that,

[t]o prevail on [a] motion 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, 47 Ohio St.2d at paragraph two of the syllabus, 351 N.E.2d 113. 

{¶43} The first part of the GTE test requires a court to determine whether the party 

seeking Civ.R. 60(B) relief has a "meritorious defense or claim to present if relief is 

granted." Id. Because we have determined that the domestic relations court erred when 

it determined that the sick/vacation benefits payout was income, and that the payout was 

in fact a marital asset, Celeste satisfied the first element of the GTE analysis. Id. 

{¶44} The second element of the GTE test requires a court to determine whether 

the party seeking Civ.R. 60(B) relief "is entitled to relief under one of the grounds stated 

in Civ.R. 60(B)(1) through (5)." Id. In her Civ.R. 60(B) motion, Celeste only argued that 

two of those grounds applied: Civ.R. 60(B)(2) and Civ.R. 60(B)(3). For the reasons stated 

above, Celeste cannot establish either of those grounds for relief. Because all elements 
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of the GTE test must be met for a party to prevail on a Civ.R. 60(B) motion, Celeste's 

failure to establish the second element of the GTE test was dispositive and the domestic 

relations court did not err and did not abuse its discretion in denying Celeste's Civ.R. 

60(B) motion.5

{¶45} We sustain Celeste's Assignment of Error No. 1, but we find that the court's 

error does not entitle Celeste to reversal of the domestic relations court's decision. We 

overrule Celeste's Assignment of Error No. 2 and affirm the domestic relations court's 

decision denying Celeste's Civ.R. 60(B) motion.6

B. John's Cross-Appeal

{¶46} John's Cross-Assignment of Error No. 1 states:

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT 

FAILED TO TAKE INTO CONSIDERATION THAT THE LUMP SUM 

RECEIVED IN 2021 BY DEFENDANT AS INCOME WAS A NONRECURRING SOURCE OF INCOME ENTITLING HIM TO A 

TERMINATION/MODIFICATION OF SPOUSAL SUPPORT AT THE TIME 

OF POST-DIVORCE HEARING, AGAINST THE MANIFEST WEIGHT OF 

EVIDENCE.

{¶47} John's Cross-Assignment of Error No. 2 states:

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT 

RULED THAT DEFENDANT'S MOTION TO TERMINATE/MODIFY 

SPOUSAL SUPPORT WAS PREMATURE, WHEN DEFENDANT HAD 

LOST HIS EMPLOYMENT AS CHIEF PROSECUTOR BY REASON OF AN 

ELECTION AND WAS EARNING APPROX. $83,000 LESS PER ANNUM 

5. Given our analysis above, we need not examine the third element of the GTE test.

6. We note that in Walsh v. Walsh, 157 Ohio St.3d 322, 2019-Ohio-3723, 136 N.E.3d 460, the Ohio 

Supreme Court addressed the interplay of Civ.R. 60(B) and R.C. 3105.171(I). The statute provides that "A 

division or disbursement of property or a distributive award made under this section is not subject to future 

modification by the court except upon the express written consent or agreement to the modification by both 

spouses." R.C. 3105.171(I). The Ohio Supreme Court concluded that "Civ.R. 60(B) cannot be used to 

alter the statutory requirements for the modification of a decree. Because R.C. 3105.171(I) does not permit 

modification absent the consent of both parties, Civ.R. 60(B) cannot provide a workaround." Id. at ¶ 23. 

Neither Celeste nor John addressed—either below or on appeal—the impact of Walsh on Celeste's Civ.R. 

60(B) motion. Likewise, the domestic relations court did not mention Walsh in its judgment entry. We need 

not address the impact of Walsh because we have determined that Celeste was not entitled to Civ.R. 60(B) 

relief.
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Case No. 2021 CO 32

IN THE LEGAL PROFESSION, AGAINST THE MANIFEST WEIGHT OF 

EVIDENCE.

{¶48} John's Cross-Assignment of Error No. 3 states:

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT 

FAILED TO RESERVE THE DEFENDANT'S RIGHT TO RELIEF ON THE 

ISSUE OF SPOUSAL SUPPORT, NUNC PRO TUNC TO JANUARY 1, 

2021, IF PLAINTIFF'S CLAIM THAT THE LUMP SUM RECEIVED BY 

DEFENDANT WAS MARITAL PROPERTY WAS TO PREVAIL ON 

APPEAL.

{¶49} John's three assignments of error challenge various aspects of the domestic 

relations court's decision to deny his motion to terminate or modify spousal support. We 

need not address the merits of John's specific arguments because our determination that 

the domestic relations court erred in finding that the sick/vacation benefits constituted 

John's 2021 income—rather than a marital asset—necessarily negates the domestic 

relation's courts determination that John's income for 2021 exceeded his income as set 

forth in the divorce decree. 

{¶50} We therefore sustain John's Cross-Assignment of Error No. 1. We decline 

to address John's Cross-Assignments of Error Nos. 2 and 3 because they are rendered 

moot by our resolution of his Cross-Assignment of Error No. 1. App.R. 12(A)(1)(c). On 

remand, the domestic relations court may assess John's request for a modification of 

spousal support for the appropriate time period based upon our determination. We make

no comment or suggestion on how the domestic relations court should decide John's 

motion.

III. Conclusion

{¶51} John's sick/vacation benefits payout was a marital asset because it 

constituted an interest in a retirement benefit acquired during the marriage. We sustain 
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Case No. 2021 CO 32

Celeste's Assignment of Error No. 1 but we find that the court's error does not entitle 

Celeste to reversal of the domestic relations court's decision. We overrule Celeste's 

Assignment of Error No. 2 because the domestic relations court did not abuse its 

discretion when it found that John did not conceal the sick/vacation benefits payout during 

the divorce proceedings. The domestic relations court did not err in denying Celeste's 

Civ.R. 60(B) motion for relief from judgment. And because the court erred in concluding 

that the 2021 payout for sick/vacation benefits was 2021 income, we sustain John's 

Cross-Assignment of Error No. 1 and reverse the trial court's finding to that effect. We 

remand for reconsideration of John's request for a modification of spousal support.

{¶52} Judgment affirmed in part, reversed in part, and cause remanded. 

M. Powell, J., concurs.

Hendrickson, J., concurs.
[Cite as Baronzzi v. Gamble, 2023-Ohio-894.]

For the reasons stated in the Opinion rendered herein, Appellant's first assignment 

of error is sustained and her second assignment of error is overruled. Cross-Appellant's 

first cross-assignment of error is sustained and his remaining assignments are moot. It 

is the final judgment and order of this Court that the judgment of the Court of Common 

Pleas, Domestic Relations, of Columbina County, Ohio, is reversed as to the finding that 

the sick/vacation benefits constitute income and we hereby remand this matter to the trial 

court for further proceedings according to law and consistent with this Court’s Opinion. 

As to the denial of Appellant's Civ.R. 60(B) motion, and in all other respects, the judgment 

of the trial court is hereby affirmed. Costs to be taxed 50% to Appellant and 50% to 

Cross-Appellant.

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a 

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

JUDGE MIKE POWELL

12TH DISTRICT COURT OF APPEALS,

SITTING BY ASSIGNMENT

JUDGE ROBERT A. HENDRICKSON

12TH DISTRICT COURT OF APPEALS,

SITTING BY ASSIGNMENT

JUDGE MATTHEW R. BYRNE

12TH DISTRICT COURT OF APPEALS,

SITTING BY ASSIGNMENT

NOTICE TO COUNSEL

This document constitutes a final judgment entry.