[Cite as Levy v. Levy , 2016-Ohio-207.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103002

JONEE LEVY

PLAINTIFF-APPELLANT

vs. GLENN D. LEVY

DEFENDANT-APPELLEE

JUDGMENT:

AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Domestic Relations Division

Case No. DR-06-310638

BEFORE: E.T. Gallagher, J., Keough, P. J., and Laster Mays, J.

RELEASED AND JOURNALIZED: January 21, 2016ATTORNEY FOR APPELLANT

Jack W. Abel Abel & Zocolo Co., L.P.A. 815 Superior Avenue, Suite 1915 Cleveland, Ohio 44114

ATTORNEY FOR APPELLEE Megan J. Corsi Stanard & Corsi Co., L.P.A. 7100 East Pleasant Valley Road, Suite 120 Independence, Ohio 44131EILEEN T. GALLAGHER, J.: {¶1} This cause came to be heard on the acceler ated calendar pursuant to App.R. 11.1 and Loc.R. 11.1. One of the purposes of the acceler ated calendar provided by App.R. 11.1 of the Eighth Appellate District “is to enable an appellate court to render a brief and conclusory decision more quickly than in a case on the regular calendar where the briefs and the facts and the legal issues are more complicated.” Crawford v. Eastland Shopping Mall Assn. , 11 Ohio App.3d 158, 463 N.E.2d 655 (10th Dist. 1983), see also Loc.R. 11.1(B)(5) of the Eighth District Court of Appeals, State of Ohio (“In its di scretion, the court may i ssue ‘judgment entry —

accelerated calendar’ or a full opinion.”). {¶2} Plaintiff-appellant, Jonee Levy (n.k.a. Jonee Farrell) (“Jonee”), appeals the denial of her motion for relief from judgment. She raises the following three assignments of error: 1. The trial court erred when it failed to grant appellant’s motion for correction of clerical error and to correct its own mathematical error. 2. The trial court erred when, in the alternative, it failed to grant appellant’s motion for relief from judgment and to hold an evidentiary hearing thereon. 3. The trial court erred in failing to correct its error and carry out the plain and unambiguous mandate of this court. {¶3} We find no merit to the appeal and a ffirm the trial court’s judgment. I. Facts and Procedural History {¶4} Jonee and defendant-appellee, Glenn Levy (“Glenn”), were divorced in August 2007. As part of the divorce se ttlement, Glenn agreed, in pa rt, to pay $4,000 per month in spousal support for 160 months. A year and a ha lf later, Glenn unilate rally reduced Jonee’s monthly support payments to $2,000. Glenn sent Jonee a letter informing her that he wasreducing her spousal support payment because he wa s paying for the children’s college expenses and because he was earning less money. Jonee di d not contest the reduction in payments at that

time. {¶5} On June 25, 2012, Glenn filed a motion to modify spousal support, requesting a downward modification of spousal support to $2,000 per month. Jonee filed numerous motions in response to Glenn’s motion, including a motion to show cause and to establish arrears. Following a hearing, the magistrate reduced Glenn’s spousal support obligation to $1,375 per month and ordered the payments to continue until April 1, 2016. The magistrate further found that Glenn was $56,250 in arrears and ordered him to pay $275 per month toward the arrearage. {¶6} Jonee filed objections to the magistrate’s report. By judgment entry dated October 18, 2013, 1 the trial court overruled Jon ee’s objections and adopted the magistrate’s report in its entirety. On appeal, this court reversed the trial court’s judg ment, modified Glenn’s spousal support obligation to $3,750 per m onth, and remanded the case to the trial court to enter judgment accordingly. Levy v. Levy , 8th Dist. Cuyahoga No. 100609, 2014-Ohio-2650 (“ Levy I ”). {¶7} Pursuant to this court’s mandate, the tria l court issued an order dated August 6, 2014, that states, in relevant part:

The Court further finds that this case was remanded to this Court to enter a Judgment Entry for correction of the J udgment Entry journalized on October 10, 2013. Specifically, the Ohio Eighth Dist rict Court of Appeals modified the monthly spousal support obligation to $3,750.00. The Court further modified the monthly arrearage payments to $750.00 per m onth until the debt is paid in full. IT IS THEREFORE ORDERED, ADJUDGED and DECREED that effective July 01, 2012, Defendant-Husband sh all pay spousal support in the amount of $3,750.00 per month, plus 2% processing charge, until April 2016. * * *

1 The judge signed the order on October 10, 2013, but the order was not filed and entered on the docket until October 18, 2013.IT IS FURTHER ORDERED, ADJUDGED and DECREED that Defendant-Husband shall a dditionally pay the amount of $750 per month toward the existing arrearage, until such debt is paid in full, said amount being $56,250.00 as of 12/31/2012. {¶8} Jonee did not appeal this order. Seven months later, however, Jonee filed a motion

for correction of a cleri cal error, or in the alternative, fo r relief from judgment. In her motion, Jonee requested an order “correcting this Court’ s prior Judgment Entry dated August 6, 2014 so as to correctly state that th e Defendant’s spousal support a rrearage was $60,000.00 as of July 25, 2012, not $56,250 as of 12/31/12 as currently set forth in said entry.”

The trial court denied Jonee’s motion. Jonee now appeals from that judgment. II. Law and Analysis

A. Clerical Error {¶9} In her first assignment of error, Jonee ar gues the trial court erred in denying her Civ.R. 60(A) motion for correc tion of a clerical error. {¶10} Civ.R. 60(A), which codifies the trial court’s power to correct clerical mistakes, provides, in re levant part: Clerical mistakes in judgment s, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. Thus, “Civ.R. 60(A) permits a tria l court, in its discretion, to co rrect clerical mistakes which are apparent on the record, but does not authorize a trial court to make substantive changes in judgments.” State ex rel. Litty v. Leskovyansky , 77 Ohio St.3d 97, 100, 671 N.E.2d 236 (1996).

“The term ‘clerical mistake’ refe rs to a mistake or omission, mech anical in nature and apparent

on the record which does not involve a legal decision or judgment.” Id

.“The basic distinction be tween clerical mistakes th at can be corrected under Civ.R. 60(A) and substantive mistakes that cannot be corr ected is that the former consists of ‘blunders in execution’ whereas the latter consists of instances where the court changes its mind, either because it made a legal or factual mistake in making its original deter mination, or because, on second thought, it has decided to exercise its discretion in a different manner.”

Karnes v. Karnes , 8th Dist. Cuyahoga No. 94521, 2010-Ohio-4016, ¶ 36, quoting Kuehn v.

Kuehn , 55 Ohio App.3d 245, 247, 564 N.E.2d 97 (12th Dist.1988). {¶11} The trial court’s August 6, 2014 judgment , rendered on remand, holds that Glenn had a spousal support arrearage of $56,250 as of December 31, 2012. Jonee contends this

amount is incorrect and that the tr ial court’s mistake was a clerical error. She contends the court failed to factor in the difference between the trial court’s original downward modification in an amount of $1,375 and the appella te court’s modification am ount of $3,750 in its arrears

calculation. The difference between the two amounts is $2,375 per month. {¶12} Jonee further argues that the $2,375 diffe rence between the trial court and the appellate court’s arrearage amount should be added to the months of July, August, September, October, November, and December 2012. In other wo rds, Jonee argues not only that there is a difference of $2,375 between the tr ial court’s original downward modificati on and this court’s modified amount, she argues the difference should have been app lied retroactively to July 2012

instead of December 2012. {¶13} Calculating the difference between the trial court and this court’s modified amounts of spousal support is mechanical in na ture, and the numbers used to calculate the difference are in the record. However, the que stion as to whether th e difference should have been applied retroactively is more than a clerical error; it requires a legal judgment. Thus,Jonee’s motion to correct a clerical error sought a substantive change in the trial court’s judgment, which is not authorized by Civ.R. 60(A). {¶14} Jonee’s proper remedy was not a Civ.R. 60( A) motion, but an appeal of the trial court’s August 6, 2014 judgment. A party cannot us e Civ.R. 60(A) as a substitute for an appeal.

Perry v. Perry , 8th Dist. Cuyahoga No. 80640, 2002-Ohio-3641, ¶ 14. {¶15} Accordingly, the first assignment of error is overruled. B. Civ.R. 60(B) Relief From Judgment {¶16} In the second assignment of error, Jonee argues the trial cour t should have granted her relief from judgment pursuant to Civ.R. 60(B). Civ.R. 60(B) provides: On motion and upon such terms as are just , the court may relie ve a party or his legal representative from a final judgment, order or proceeding for the following reasons (1) mistake, inadvertence, surp rise 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, misrepresentation or other misconduct of an adverse party; (4) th e judgment has been satisfied, released or discharged, or a prior judgment upon wh ich it is based has been reversed or otherwise vacated, or it is no longer e quitable that the judgment should have prospective 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 taken. {¶17} In order to prevail on a motion for relie f from judgment pursuant to Civ.R. 60(B), the movant must demonstrate the following (1) a meritorious defense or claim to present if relief is granted, (2) entitlement to re lief under one of the grounds stated in Civ.R. 60(B)(1) through (B)(5), and (3) the timeliness of the motion. GTE Automatic Elec., Inc , 47 Ohio St.2d 146, 150-151, 351 N.E.2d 113 (1976). The failure to estab lish any one of these requirements requires

a denial of the motion . See Rose Chevrolet, Inc. v. Adams , 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988).{¶18} We review a trial court’s denial of a Civ.R. 60(B) motion for relief from judgment

for an abuse of discretion. Id . To constitute an abuse of disc retion, the trial court’s ruling must be “unreasonable, arbitr ary or unconscionable.” Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶19} Jonee did not cite any specific provision listed in Civ.R. 60(B)(1)-(5) to justify vacating the trial court’s judgment in her motion for relief from judgment. She simply asserted the judgment should be vacated because the trial court made a mistake in the amount of spousal support arrearage. Civ.R. 60(B)(1 ) provides relief from judgment to correct certain mistakes. However, Civ.R. 60(B) cannot be used as a substitute for an appeal. Doe v. Trumbull Cty.

Children Servs. Bd. , 28 Ohio St.3d 128, 502 N.E.2d 605 (1986), paragraph two of the syllabus.

See also State ex rel. Ric hard v. Cuyahoga Cty. Commrs ., 89 Ohio St.3d 205, 729 N.E.2d 755 (2000); Guadalupe v. Minadeo , 8th Dist. Cuyahoga No. 98077, 2012-Ohio-5071, ¶ 8. See also Wozniak v. Tonidandel , 121 Ohio App.3d 221, 228, 699 N.E.2d 555 (8th Dist.1997). {¶20} In Volodkevich v. Volodkevich , 35 Ohio St.3d 152, 155, 518 N.E.2d 1208 (1988), the Ohio Supreme Court observed that “the gist of post-trial relief is to remedy an injustice resulting from a cause that cannot reasonably be a ddressed during the ordina ry trial a nd appellate proceedings.” In other words, Civ.R. 60(B) may not be used to attack legal errors made by a trial court. Rather, “‘Civ.R. 60(B) permits a court to grant relief when the factual circumstances relating to a judgment are shown to be materially different from the circumstances at the time of the judgment.’” Tokar v. Tokar , 8th Dist. Cuyahoga No. 93506, 2010-Ohio-524, ¶ 9, quoting

Brackins v. Brackins , 8th Dist. Cuyahoga No. 75025, 1999 Ohio App. LEXIS 6061 (Dec. 16, 1999).{¶21} Jonee challenges the tria l court’s conclusion that Glenn only owed $56,250 as of December 31, 2012. However, in her motion for relief from judgment, sh e makes no argument that her circumstances materially changed between the time the court rendered the August 6, 2014 order and the filing of her motion. Nor doe s Jonee provide any evidence or argument outside the record to support any grounds for relie f listed in Civ.R. 60(B)(1)-(5). Jonee’s claim that the $56,250 spousal support arrearage is errone ous could have been corrected by a timely appeal, and is thus not a proper ground for relief under Civ.R. 60(B). Theref ore, the trial court properly overruled her motion for relief from judgment. {¶22} The second assignment of error is overruled.

C. Law of the Case {¶23} In the third assignment of error, Jonee argues the trial cour t’s August 6, 2014 order should be corrected pursuant to the law of the case doctrine. She contends the trial court’s order

violates this court’s modification of Glenn’s spousal support obligations in Levy I

. {¶24} The law of the case doctrine functions to compel trial courts to follow the mandates of reviewing courts. “The doc trine provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the

case at both the trial a nd reviewing levels.” Nolan v. Nolan , 11 Ohio St.3d 1, 462 N.E.2d 410 (1984). {¶25} The law of the case doctrine is necessary (1) to ensure consistency of results in a case, (2) to avoid endless litigation by settling the issues, and (3) to preserve the structure of superior and inferior courts as designed by the Ohio Constitution. State ex rel. Potain v.

Mathews , 59 Ohio St.2d 29, 32, 391 N.E.2d 343 (1979). However, the law of the case doctrine is considered to be a rule of practice rather than a binding rule of substantive law and will not beapplied so as to achieve unjust results. Nolan at 3; Hubbard ex rel. Creed v. Sauline , 74 Ohio St.3d 402, 404, 659 N.E.2d 781 (1996). {¶26} As previously explained, Jonee’s remedy for challenging an erroneous judgment on the spousal support arrearage was to file a direct appeal. This she did not do. Just as Civ.R. 60(B) cannot be used as a substitute for appeal , the law of the case doctrine is not a proper method for attacking the trial court’s final judgment. {¶27} Therefore, the third assign ment of error is overruled. {¶28} Judgment affirmed. It is ordered that appellee recove r from appellant costs herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas, Domestic Relations Division, to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

EILEEN T. GALLAGHER, JUDGE KATHLEEN ANN KEOUGH, P.J., and ANITA LASTER MAYS, J., CONCUR