[Cite as Ouellette v. Ouellette, 2020-Ohio-705.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 ERIE COUNTY 

Darlene R. Ouellette Court of Appeals No. E-19-017 

 

 Appellant Trial Court No. 2016-DR-077 

v. 

Johnnie E. Ouellette DECISION AND JUDGMENT

Appellee Decided: February 28, 2020 

* * * * * 

 Danielle C. Kulik, for appellant. 

 Kyle R. Wright and Zachary E. Dusza, for appellee. 

* * * * * 

ZMUDA, P.J.

{¶ 1} This matter is before the court on appeal from the judgment of the Erie 

County Court of Common Pleas, Domestic Relations Division, granting defendant- 

 
2.

appellee’s motion for relief from judgment and entering a new order concerning property 

distribution, based on a finding of mutual mistake. For the reasons that follow, we 

reverse and remand for further proceedings. 

I. Facts and Procedural Background 

{¶ 2} Appellant, Darlene Ouellette and appellee, Johnnie Ouellette were married 

in 1994, and have three children, born August 19, 1995, September 21, 1996, and 

September 10, 1999. On June 24, 2016, appellant filed a complaint for divorce. 

Appellee filed a counterclaim for divorce with his answer. The matter proceeded through 

discovery, with the trial court addressing various discovery disputes. Two months before 

the scheduled trial date, the parties engaged in a settlement conference at the offices of 

appellant’s attorney. 

{¶ 3} After a successful settlement conference, the parties entered into a stipulated 

judgment entry and divorce decree, resolving all matters in controversy. The trial court 

placed the agreement on the record, at hearing on April 18, 2017, with the divorce decree 

journalized April 20, 2017. As agreed, appellant received the marital home, and appellee 

received $110,000 from appellant’s OPERS account, ordered as follows: 

4.06(N). One Hundred and Ten Thousand Dollars ($110,000.00) 

from [appellant’s] O.P.E.R.S. account, which [appellant] shall cooperate 

with [appellee], and [appellee] shall cause to be transferred to a drop 

account in his name by a Division of Property Order (D.O.P.O.), within 

ninety (90) days or be forever barred, with costs, expenses, and taxes 

allocated to [appellee]. 
3.

Appellant’s attorney explained the language stricken from the entry to the trial 

court, at hearing, as follows: 

There was a provision in here, which has been crossed out, and the parties 

understand that and are in agreement to that, that it was going to be within 

90 days, but we understand this is not a quick process – 

{¶ 4} After entry of the divorce decree, the parties learned that appellee could not 

receive any distribution from appellant’s OPERS account until she actually retired. The 

disbursement to appellee, moreover, would be in periodic payments after appellant 

retired.1

 

{¶ 5} Upon learning that a lump sum from appellant’s OPERS account was 

impossible, counsel for appellee suggested payment of the lump sum from appellant’s 

deferred compensation account, which he believed contained sufficient funds, but 

appellant refused. When appellant indicated no present intention to transfer any funds to 

appellee, he filed a motion for relief from judgment, pursuant to Civ.R. 60(B)(1), arguing 

mutual mistake. 

{¶ 6} Appellee requested either an award against appellant’s deferred

compensation account in the amount of $110,000 in order to remedy the mistake, or an 

 

1

 Appellant is in her mid-40s with 23 years of service, and the earliest she will be eligible 

for retirement is at 55 years old. Appellee is much older, by more than a decade, and 

would be around 70 years old by the time appellant reached her retirement eligibility. At 

hearing on appellee’s motion for relief from judgment, appellee argued this age 

difference as supporting the lump sum agreement, as appellee contemplated not surviving 

until appellant’s retirement. 
4.

order vacating the entire property settlement so the parties might negotiate a new 

settlement, arguing the lump sum payment was a material term of the settlement 

agreement. Appellant opposed the motion, arguing any award against her deferred 

compensation account would be a modification to the property division without proper 

reservation of jurisdiction. She also argued lack of mutual mistake, and that immediate 

payment of the $110,000 was never a term of the parties’ agreement. 

{¶ 7} The trial court held an evidentiary hearing on the motion, and counsel for 

appellee and the parties testified regarding their understanding of the terms of the 

property settlement. Appellant and appellee each testified that they understood appellee 

would receive a present lump sum payment of $110,000, mistakenly believing that 

OPERS would distribute the funds from appellant’s OPERS account. Appellant testified 

regarding a lump sum payment, stating: 

Well, I guess I’m learning today that he can’t have a lump sum 

award. Prior to that, I was under the impression that it was going to go into 

a drop account and that he would get it out of there and that was - - that was 

my understanding is that the 110,000 would go into a drop account and then 

he would draw money from there. If he drew it all or he drew it monthly, 

you know, I wasn’t privy to that. I just knew that he was going to get 

110,000 out of my retirement account. 

She also acknowledged that the purpose of consulting with an expert was “to see if he 

could get a lump sum of my retirement.” 
5.

{¶ 8} After considering the testimony and existing authority, the trial court found 

either mutual mistake or unilateral mistake, preventing formation of a valid agreement 

between the parties regarding property division. The trial court granted the motion for 

relief, but rather than vacate the entire property award or order payment from appellant’s 

deferred compensation fund, as requested, the trial court vacated only the portion of the 

decree that ordered distribution from appellant’s OPERS account. Additionally, the trial 

court entered an order that appellant pay appellee the lump sum of $110,000, within six 

months, without specifying the source of the funds. Appellant now appeals that 

judgment, asserting the following assignments of error: 

1. THE COURT ERRED IN FINDING IT HAD JURISDICTION 

TO MODIFY THE PROPERTY DIVISION 

2. THE COURT ERRED GRANTING THE MOTION FOR CIV.R. 

60(B) RELIEF. 

3. THE REMEDY THE COURT ORDERED WAS CONTRARY 

TO LAW AND THE TIMING OF DISBURSEMENT WAS AN ABUSE 

OF DISCRETION. 

II. Analysis 

{¶ 9} The trial court granted appellee relief from judgment, as provided under 

Civ.R. 60(B)(1), based on mutual mistake. In appealing the judgment, appellant argues 

the trial court was without jurisdiction to modify the property division, erred in granting 
6.

Civ.R. 60(B) relief, and ordered a remedy that was both contrary to law and an abuse of 

discretion.2

 We address each assignment of error in turn. 

A. Jurisdiction to Modify 

{¶ 10} In her first assignment of error, appellant challenges the trial court’s 

jurisdiction in modifying the agreement pursuant to Civ.R. 60(B). “Civ.R. 60(B) is a 

mechanism whereby a party or parties may obtain relief by motion from a judgment or 

order.” In re Whitman, 81 Ohio St.3d 239, 242, 690 N.E.2d 535 (1998). The Rule 

strikes a balance between the finality of judgments and a perfect result “by vesting the 

courts with broad, but not unlimited authority to set aside judgments.” Knapp v. Knapp, 

24 Ohio St.3d 141, 145, 493 N.E.2d 1343 (1986). 

{¶ 11} Appellant first argues that the trial court failed to retain jurisdiction to 

modify the property distribution, and Civ.R. 60(B) does not apply where the trial court 

does not specifically reserve jurisdiction in its judgment. Appellant’s argument frames 

the issue as statute supplanting application of Civ.R. 60(B) in its entirety. In support, 

appellant references the change of circumstances and reservation of jurisdiction 

requirements under R.C. 3105.18, as addressed in Morris v. Morris, 148 Ohio St.3d 138, 

2016-Ohio-5002, 69 N.E.3d 664. 

 

2

 Appellant also argues, for the first time on appeal, that the trial court improperly relied 

on parol evidence in granting relief from judgment. Because appellant did not raise an 

objection before the trial court, we deem this issue waived on appeal, and decline to 

address it. See e.g. Charlesgate Commons Cond. Assn v. W. Reserve Group, 6th Dist. 

Lucas No.L-14-1039, 2014-Ohio-4342, ¶ 11 (where appellant failed to object to 

admissibility of evidence in ruling on summary judgment, that objection is waived on 

appeal). 
7.

{¶ 12} In Morris, the Ohio Supreme Court considered whether the spousal support 

statute limited relief under Civ.R. 60(B). Prior to the enactment of R.C. 3105.18(E), a 

party could seek to vacate an order for periodic spousal support under Civ.R. 60(B) under 

the common law. However, R.C. 3105.18(E) now provides the sole authority to vacate or 

modify periodic spousal support, with the requirement that the decree contain a specific 

reservation of jurisdiction. Morris at ¶ 56. The statute provides, in pertinent part: 

[T]he court that enters the decree * * * does not have jurisdiction to modify 

the amount or terms * * * unless the court determines that the 

circumstances of either party have changed and unless * * * the decree or a 

separation agreement * * * contains a provision specifically authorizing the 

court to modify the amount or terms of alimony or spousal support.” R.C. 

3105.18(E)(1)-(2). 

As noted in Morris, “[i]n R.C. 3105.18(E), the General Assembly has established the

limits of a trial court’s jurisdiction to modify an award of spousal support.” Id at ¶ 57. 

{¶ 13} The dispute in this case, however, does not concern spousal support, but 

instead concerns the division of marital property, governed by R.C. 3105.171. This 

section of the divorce statutes does not expressly require a reservation of jurisdiction, but 

instead limits modification as follows: 

(I) 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. 
8.

At the time the trial court entered judgment, the Ohio Supreme Court had not yet 

addressed the interplay between R.C. 3105.171(I) and Civ.R. 60(B). Since that time, 

however, the Court decided Walsh v. Walsh, 157 Ohio St.3d 322, 2019-Ohio-3723, 136 

N.E.3d 460.3

 

{¶ 14} In Walsh, the parties intended, as a term of the divorce decree, that the wife 

receive direct payment from the government, as her portion of her husband’s military 

pension. However, the rules governing military pensions required a marriage lasting at 

least 10 years before the military could issue direct payment to the service-member’s 

spouse. Walsh at ¶ 8, citing 10 U.S.C. 1408(d)(2). The parties married in 1994 and 

separated after six years, but more than 13 years passed before the divorce filing. Walsh 

at ¶ 2. Based on the time the couple lived together as husband and wife, the decree 

recited a 6-year marriage, as permitted under R.C. 3105.171(A)(2)(b). Id. at ¶ 3. 

{¶ 15} More than a year passed, and the wife learned that direct payments were 

not possible based on the recitation of a 6-year marriage in the decree. She filed a motion 

for relief from the judgment pursuant to Civ.R. 60(B)(4) and (5), and the trial court 

modified the decree to recite a 10-year marriage term over the husband’s objection. Id. at 

¶ 12. The husband appealed the trial court’s modification, and the judgment was 

 

 

3

 As the parties had fully briefed the matter prior to the Ohio Supreme Court’s decision in 

Walsh, we granted them leave to file supplemental briefs to address this new authority. 

Appellant filed her supplemental brief on January 21, 2020, and appellee filed his 

supplemental brief on January 29, 2020. 
9.

affirmed in a split decision, with one judge conferring in judgment only, and the third 

judge dissenting. Id. at ¶ 13 - 15. The Supreme Court accepted the husband’s 

discretionary appeal. Id. at ¶ 15. 

{¶ 16} In reversing that judgment, the Ohio Supreme Court noted the following: 

The change to the decree ordered by the domestic-relations court is 

best understood as a modification to a property division. The provisions of 

the decree at issue divided the pension by specifying the dates of the 

marriage. By changing the marriage length, the trial court modified the 

terms of the divorce decree with respect to a division of property. The 

parties did not both consent to that modification to the property division, so 

by the plain language of R.C. 3105.171(I), the court had no authority to 

order the change. Walsh at ¶ 20. 

{¶ 17} Acknowledging the decision in Morris, the Court recognized that the 

statutory provision limiting modification “is a rule of substantive law” and the procedural 

rule, Civ.R. 60(B), “‘cannot abridge, enlarge, or modify any substantive right’ created by 

statute.” Walsh at ¶ 22, quoting Morris at ¶ 30, quoting Ohio Constitution, Article IV, 

Section 5(B). “Though Morris dealt with spousal support rather than a property 

distribution, the same principle apples: 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.” Walsh at ¶ 23. 
10. 

{¶ 18} Clearly, in this case, the trial court modified the consent decree without the 

consent of both parties. Similar to the court in Walsh, the trial court changed the consent 

decree in order to alter the manner of payment to appellee, striking the impossible lump 

sum from OPERS in favor of a cash payment by appellant to appellee, within 6 months. 

While acknowledging the lack of consent, appellee argues that R.C. 3105.89 provides an 

exception to the consent requirement under R.C. 3105.171(I). 

{¶ 19} R.C. 3105.89 provides, “Notwithstanding division (I) of section 3105.171 

of the Revised Code: (A) The court shall retain jurisdiction to modify, supervise, or 

enforce the implementation of an order described in section 3105.81 of the Revised 

Code.” R.C. 3105.89(A). Appellee argues that, because the trial court’s modification 

pertained to implementing the distribution from appellant’s OPERS account, R.C. 

3105.89(A) applied, and the trial court acted within its authority to enforce the intent of 

the parties. 

{¶ 20} We find this argument unpersuasive. R.C. 3105.89 provides a trial court 

with “continuing jurisdiction over division of property orders involving public retirement 

programs.” Enty v. Enty, 8th Dist. Cuyahoga No. 104167, 2017-Ohio-4177, ¶ 9, quoting 

Hines v. Hines, 3d Dist. Marion No. 9-10-15, 2010-Ohio-4807, ¶ 11 (Emphasis added.). 

An order under R.C. 3105.81 governs a “benefit or lump sum payment * * * from a 

public retirement program to an alternate payee,” requiring a specific form created under 

R.C. 3105.90 by the state retirement system. 

{¶ 21} Continuing jurisdiction over pension disbursements under R.C. 3105.89 is 

separate from the property division order under R.C. 3105.171. See e.g. Walsh at ¶ 27 
11. 

(“Nothing in the provision that gave the court continuing jurisdiction over the QDRO 

authorized it to alter the final decree of divorce.”). Significantly, the trial court in this 

case struck the OPERS payment from the consent decree entirely, and substituted a nonpension, cash payment in its place. As in Walsh, while the trial court attempted to reach 

the intended result of the property division order – in this case a lump sum payment to 

appellee – the payment ordered by the trial court modified the consent decree, with no 

facts that permit a finding that the trial court exercised continuing jurisdiction over a 

pension plan. 

{¶ 22} The trial court’s modification, in this case, did not fall within the exception 

under R.C. 3105.89, and the parties clearly did not consent as required by R.C. 

3105.171(I). As Civ.R. 60(B) may not be used to bypass the consent requirement of the 

statute, we find appellant’s first assignment of error well-taken. 

B. Civ.R. 60(B) Determination 

{¶ 23} While we agree with appellant that the trial court lacked jurisdiction to 

modify the consent decree, we must also consider appellant’s argument that the trial court 

lacked jurisdiction to consider a Civ.R. 60(B)(1) motion at all. Appellant argues that a 

trial court in a domestic relations action could never consider a timely Civ.R. 60(B)(1) 

motion without a reservation of jurisdiction in the decree. 

{¶ 24} There is nothing within Civ.R. 60(B) that precludes a motion for relief 

from judgment in a domestic relations proceeding. See Civ.R. 60(B); Whitman, 81 Ohio 

St.3d at 242, 690 N.E.2d 535. In instances in which material mistake occurred, the “lack 

of mutuality undermines the integrity” of the proceeding, “and may constitute sufficient 
12. 

grounds to set aside the decree under Civ.R. 60(B).” Whitman at 241, citing In re 

Murphy, 10 Ohio App.3d 134, 461 N.E.2d 910 (1st Dist.1983) (additional citations 

omitted.) 

{¶ 25} In Ohio, divorce is “a creature of state statute.” Barth v. Barth, 113 Ohio 

St.3d 27, 2007-Ohio-973, 862 N.E.2d 496, ¶ 9, citing Coleman v. Coleman, 32 Ohio 

St.2d 155, 159, 291 N.E.2d 530 (1972); see also Soyk v. Soyk, 45 Ohio App.2d 319, 321, 

345 N.E.2d 461 (9th Dist.1975) (“Actions for divorce * * * are purely statutory in 

nature.”). As stated in Walsh, a substantive statutory provision controls over a procedural 

rule, and where the statute requires consent to modify the property order, a party may not 

bypass that provision with a Civ.R. 60(B) motion. The Court in Walsh, however, did not 

preclude the use of Civ.R. 60(B) in domestic relations cases, nor address other types of 

relief available under the Rule. 

{¶ 26} The statute applicable to property division, R.C. 3105.171, contains no 

provision requiring reservation of jurisdiction to consider Civ.R. 60(B)(1) relief. 

{¶ 27} In Morris, the Supreme Court considered the limitations to Civ.R. 60(B) 

relief for spousal support payments, considering the requirements under R.C. 3105.18. 

Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664 at ¶ 2. The Court 

specifically addressed whether vacating the order for spousal support constituted a 

modification, noting: 

{¶ 28} In the realm of domestic-relations law, ‘modification order’ has a 

particular meaning: 
13. 

[a] post-divorce order that changes the terms of child support,

custody, visitation, or alimony. A modification order may be agreed 

to by the parties or may be ordered by the court. The party wishing 

to modify an existing order must show a material change in 

circumstances from the time when the order sought to be modified 

was entered. Morris at ¶ 53, quoting Black’s Law Dictionary,1157 

(10th Ed.2014). 

{¶ 29} Considering the prospective, ongoing nature of spousal support, child 

support, custody and visitation, an order vacating future payments or future rights to 

custody or visitation unquestionably modifies such orders. See Morris at ¶ 53 (as to 

spousal support, “any action taken to change the nature, amount, terms of payment, and 

duration of spousal support, including vacating the award” is a modification under R.C. 

3105.18(E)). In contrast, an order for division of property, under R.C. 3105.171, 

concerns the present, one-time allocation of marital property to achieve an equitable 

division. 

{¶ 30} R.C. 3105.171 is silent regarding a reservation of jurisdiction, with an 

exception provided in a separate section for future modification for an order related to a 

pension. R.C. 3105.89. Moreover, in Whitman, the Supreme Court specifically addressed 

motions brought under Civ.R. 60(B)(1), (2) and (3), as “an appropriate procedural vehicle 

for requesting relief,” including vacation of the decree, as a limitation that “provides 

 
14. 

permanency to any [decree] that has remained unchallenged for one year.” Whitman, 81 

Ohio St.3d at 245, 690 N.E.2d 535. While the Whitman decision did reference a 

reservation of jurisdiction, the statute has since been amended. 

{¶ 31} The Supreme Court in Walsh noted the Whitman decision and its reliance 

on a subsequently amended statute as follows: 

In Whitman, we held that a court, pursuant to Civ.R. 60(B)(1), (2), 

and (3), could make postdecree modifications to a property division when 

the parties had incorporated a provision in the decree allowing for future 

modifications by court order. Whitman was decided prior to the amendment 

of R.C. 3105.171(I) in 2010 by Am.Sub.H.B. No. 238 that added its current 

final phrase regarding “express written consent or agreement to the 

modification by both spouses.” (Emphasis added.) Because the issue is not 

before us, we express no opinion today as to whether a reservation of 

jurisdiction would be a sufficient basis to allow a court to modify a 

property division via Civ.R. 60(B)(1), (2), or (3) under the current statutory 

scheme. Walsh, 157 Ohio St.2d 322, 2019-Ohio-3723, 136 N.E.3d 460 at ¶ 

28, fn 3. 

{¶ 32} The Court in Walsh noted, without deciding, the issue of whether 

“reservation of jurisdiction” language satisfied the consent requirement of R.C. 

3105.171(I), permitting modification. Our case presents a wholly separate issue, whether 

a court may grant relief other than modification, including vacation of the property order 

or the decree. We find no prohibition, within the statute, to a court’s vacation of the 
15. 

entire property order or the decree, as appropriate under Civ.R. 60(B)(1), (2), or (3). 

Appellee requested the trial court vacate the property division order in its entirety as 

alternative relief in his motion, so that the parties might return to the bargaining table or 

proceed to trial on the issue of property division. 

{¶ 33} Construing the language of R.C. 3105.171, we find no support for 

appellant’s argument that the trial court lacked jurisdiction to consider relief other than 

modification to the existing property order, barring a Civ.R. 60(B)(1) motion in even the 

most egregious cases. In other words, appellant argues that a trial court will never have 

authority to set aside – upon a timely motion – an agreed entry that resulted from mutual 

mistake regarding a material term, unless all parties consent. Where, as in this case, a 

party demonstrates facts that challenge the very formation of a consent decree, a motion 

for relief under Civ.R. 60(B)(1) is appropriate. Whitman, 81 Ohio St.3d at 241, 690 

N.E.2d 535 (without mutuality, “there was no agreement upon which [the decree] could 

have been based.”). We therefore conclude that the trial court did have jurisdiction to 

consider appellee’s Civ.R. 60(B)(1) motion, even if the remedy of modification was 

improperly ordered. 

{¶ 34} In order to prevail on a motion for relief, “[t]he moving party must 

demonstrate that he or she (1) has a meritorious defense or claim to present if the relief is 

granted, (2) is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) 

through (5), and (3) has made the motion within a reasonable time unless the motion is 

based upon Civ.R. 60(B)(1), (2), or (3), in which case it must be made not more than one 

year after the judgment.” Whitman at 242, citing GTE Automatic Elec., Inc. v. ARC 
16. 

Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the 

syllabus. We review a determination under Civ.R. 60(B) for an abuse of discretion. Id., 

citing Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). 

{¶ 35} An “abuse of discretion” requires a finding of more than an error of 

judgment, and implies the trial court acted unreasonably, arbitrarily, or unconscionably. 

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

challenges the grant of relief as an abuse of discretion considering all three prongs of the 

GTE test, arguing no meritorious defense, no mistake, and an untimely motion. 

{¶ 36} Appellant first argues that the trial court erred in finding a meritorious 

defense in support of appellee’s motion for relief from judgment. The trial court found 

that the parties had intended to reach an equal division of marital property, which 

included the immediate, lump sum payment to appellee. Such a claim, where supported 

by the record, is sufficient to demonstrate a meritorious defense or claim. See e.g. 

Souders v. Souders, 6th Dist. Sandusky No. S-98-017, 1998 WL 735336 (Oct. 23, 1998)

(where parties entered into consent agreement, 60(B) relief appropriate where judgment 

resulted in inequitable division of property and wife argued fraud, duress, or undue 

influence). 

{¶ 37} The record demonstrates the parties contemplated a present payment of 

$110,000 to appellee, as a material term in the agreement for equal division of marital 

property. As to the 90-day language, excised from the consent entry, appellant’s counsel 

indicated “that it was going to be within 90 days, but we understand this is not a quick 

process.” Appellant, moreover, acknowledged at hearing that she was to make a payment 
17. 

to appellee as part of the property settlement. Considering the record, the trial court’s 

finding was not unreasonable, arbitrary, or unconscionable, and appellant has failed to 

demonstrate any abuse of discretion. 

{¶ 38} Appellant next argues that there was no mistake, because the consent 

judgment contained no language of an immediate, lump sum payment, and trial counsel’s 

failure to include such “essential terms” may not serve as the basis for appellee’s claim of 

mutual mistake. While the consent entry originally recited payment within 90 days, with 

that language crossed out, the trial court placed the agreement on the record at the time it 

accepted the consent decree, with counsel for each party testifying as to the terms. The 

trial court also heard the testimony of the parties and appellee’s counsel at the evidence 

hearing on appellee’s motion seeking relief. 

{¶ 39} As to the consent decree, appellant’s counsel explained, on the record, the 

elimination of the 90-day language, indicating the process to release the funds could take 

longer. At the hearing on appellee’s motion for relief from judgment, both parties 

acknowledged that they contemplated a lump sum payment as a term of the property 

settlement. Furthermore, while appellant received contrary advice prior to the settlement 

conference regarding disbursements from her OPERS account, she either relied on the 

expert retained for the settlement conference, or knew that appellee relied on that expert 

in agreeing to the settlement, and chose to remain silent and reap the benefit from his 

misunderstanding of the facts. Based on these facts, we find no abuse of discretion 

regarding the trial court’s finding of mistake. 
18. 

{¶ 40} Finally, appellant argues that appellee failed to file a timely motion. The 

record clearly demonstrates that appellee filed his motion within the one-year limitation 

of Civ.R.60(B)(1). To be timely, however, the motion must also be filed within a 

reasonable time, considering the facts of the case. McBroom v. McBroom, 6th Dist. 

Lucas No. L-03-1027, 2003-Ohio-5198, ¶ 33-34. 

{¶ 41} Here, appellant argues that nine months is an unreasonable amount of time 

for appellee to neglect his rights, because the information pertaining to the OPERS 

account was readily available on the date the parties entered the settlement and filed the 

consent judgment. This argument, however, requires a finding that there was no mistake 

regarding the possibility of obtaining a lump sum payment from appellant’s OPERS 

account. 

{¶ 42} The trial court determined either mutual or unilateral mistake existed at the 

time the parties entered into the consent decree, entitling appellee to relief from the 

judgment as it pertained to the property distribution. Based on the record, there appears 

no undue delay between the time appellee discovered the impossibility of a lump sum 

disbursement and the time appellee filed his motion seeking relief from judgment. Based 

on the facts, we find no abuse of discretion in the trial court’s determination of a timely 

motion. We therefore find appellant’s second assignment of error not well-taken. 

C. Disbursement Ordered 

{¶ 43} In her third assignment of error, appellant challenges the timing of 

disbursement ordered as remedy by the trial court based on modification to the property 

 
19. 

distribution. Because we determined the trial court lacked authority to modify the order 

without consent of the parties, we must necessarily find the modified terms improper. 

Accordingly, appellant’s third assignment of error is well-taken. 

III. Conclusion 

{¶ 44} For the forgoing reasons, we affirm, in part, the judgment of the Erie 

County Court of Common Pleas as to appellee’s entitlement to relief from judgment 

pursuant to Civ.R. 60(B). The trial court did not err in finding a material mistake, 

undermining the integrity of the parties’ agreement as to division of property under R.C. 

3105.171. However, because the trial court had no authority to modify the existing 

property order without consent, we reverse, in part, and remand the matter for further 

proceedings pursuant to Civ.R. 60(B)(1), and direct the trial court to consider a remedy 

permitted under R.C. 3105.171. The parties shall split the costs of this appeal pursuant to 

App.R. 24. 

Judgment affirmed, in part 

and reversed, in part. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Arlene Singer, J. _______________________________ 

JUDGE 

Thomas J. Osowik, J. 

_______________________________ 

Gene A. Zmuda, P.J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 
20. 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.