[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, gran ting defendant-2. appellee’s motion for relief from judgment and entering a new o rder concerning property distribution, based on a finding of mutual mistake. For the re asons that follow, we reverse and remand for further proceedings. I. Facts and Procedural Background {¶ 2} Appellant, Darlene Ouellette and appellee, Johnnie Ouellette we re married in 1994, and have three children, born August 19, 1995, Septemb er 21, 1996, and September 10, 1999. On June 24, 2016, appellant filed a compla int for divorce. Appellee filed a counterclaim for divorce with his answer. The matter proceeded through discovery, with the trial court addressing various discovery di sputes. Two months before the scheduled trial date, the parties engaged in a settlement c onference at the offices of appellant’s attorney. {¶ 3} After a successful settlement conference, the parties entered i nto a stipulated judgment entry and divorce decree, resolving all matters in con troversy. The trial court placed the agreement on the record, at hearing on April 18, 201 7, 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 fo llows: 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 t o 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, an d taxes allocated to [appellee].3. Appellant’s attorney explained the language stricken from the e ntry 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 app ellee could not receive any distribution from appellant’s OPERS account until s he actually retired. The disbursement to appellee, moreover, would be in periodic paymen ts after appellant

retired. 1 {¶ 5} Upon learning that a lump sum from appellant’s OPERS account wa s impossible, counsel for appellee suggested payment of the lump sum from appellant’s deferred compensation account, which he believed contained suff icient funds, but appellant refused. When appellant indicated no present intenti on 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 reme dy 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 co ntemplated not surviving until appellant’s retirement.4. order vacating the entire property settlement so the parties mi ght negotiate a new settlement, arguing the lump sum payment was a material term of the settlement agreement. Appellant opposed the motion, arguing any award aga inst her deferred compensation account would be a modification to the property di vision without proper reservation of jurisdiction. She also argued lack of mutual mi stake, and that immediate payment of the $110,000 was never a term of the parties’ agreem ent. {¶ 7} The trial court held an evidentiary hearing on the motion, and counsel for appellee and the parties testified regarding their understandin g of the terms of the property settlement. Appellant and appellee each testified tha t they understood appellee would receive a present lump sum payment of $110,000, mistakenl y 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 g oing to go into a drop account and that he would get it out of there and that w as - - that was my understanding is that the 110,000 would go into a drop accou nt and then he would draw money from there. If he drew it all or he drew i t monthly, you know, I wasn’t privy to that. I just knew that he was goin g to get 110,000 out of my retirement account. She also acknowledged that the purpose of consulting with an ex pert was “to see if he could get a lump sum of my retirement.”5. {¶ 8} After considering the testimony and existing authority, the tri al court found either mutual mistake or unilateral mistake, preventing formati on of a valid agreement between the parties regarding property division. The trial cou rt granted the motion for relief, but rather than vacate the entire property award or ord er payment from appellant’s deferred compensation fund, as requested, the trial court vacat ed 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 provi ded under Civ.R. 60(B)(1), based on mutual mistake. In appealing the jud gment, appellant argues the trial court was without jurisdiction to modify the property division, erred in granting6. Civ.R. 60(B) relief, and ordered a remedy that was both contrar y 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 tria l 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 motio n 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 perfe ct result “by vesting the courts with broad, but not unlimited authority to set aside jud gments.” 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 ju risdiction to modify the property distribution, and Civ.R. 60(B) does not app ly where the trial court does not specifically reserve jurisdiction in its judgment. Ap pellant’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 reservatio n 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 ap pellant 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 faile d to object to admissibility of evidence in ruling on summary judgment, that o bjection 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 enactm ent of R.C. 3105.18(E), a party could seek to vacate an order for periodic spousal suppor t 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 jurisdic tion 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 au thorizing the court to modify the amount or terms of alimony or spousal suppo rt.” 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 sp ousal support.” Id at ¶ 57. {¶ 13} The dispute in this case, however, does not concern spousal sup port, 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 re servation of jurisdiction, but

instead limits modification as follows: (I) A division or disbursement of property or a distributive aw ard made under this section is not subject to future modification b y the court except upon the express written consent or agreement to the mod ification 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 h er husband’s military pension. However, the rules governing military pensions requir ed a marriage lasting at least 10 years before the military could issue direct payment t o the service-member’s

spouse. Walsh at ¶ 8, citing 10 U.S.C. 1408(d)(2). The parties married in 19 94 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 payme nts were not possible based on the recitation of a 6-year marriage in th e 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 judg ment 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 fo llowing: The change to the decree ordered by the domestic-relations cour t is best understood as a modification to a property division. The p rovisions of the decree at issue divided the pension by specifying the dates of the marriage. By changing the marriage length, the trial court modi fied the terms of the divorce decree with respect to a division of prope rty. The parties did not both consent to that modification to the proper ty division, so by the plain language of R.C. 3105.171(I), the court had no aut hority 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 substan tive law” and the procedural rule, Civ.R. 60(B), “‘cannot abridge, enlarge, or modify any su bstantive 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. 31 05.171(I) does not permit modification absent the consent of both parties, Civ.R. 60(B) c annot provide a

workaround.” Walsh at ¶ 23.10. {¶ 18} Clearly, in this case, the trial court modified the consent dec ree 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, str iking the impossible lump sum from OPERS in favor of a cash payment by appellant to appel lee, 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 310 5.81 of the Revised Code.” R.C. 3105.89(A). Appellee argues that, because the tri al court’s modification pertained to implementing the distribution from appellant’s OPE RS account, R.C. 3105.89(A) applied, and the trial court acted within its author ity to enforce the intent of the parties. {¶ 20} We find this argument unpersuasive. R.C. 3105.89 provides a tr ial 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 add ed.). An order under R.C. 3105.81 governs a “benefit or lump sum paym ent * * * from a public retirement program to an alternate payee,” requiring a specific form created unde r R.C. 3105.90 by the state retirement system. {¶ 21} Continuing jurisdiction over pension disbursements under R.C. 3 105.89 is separate from the property division order under R.C. 3105.171. See e.g. Walsh at ¶ 2711. (“Nothing in the provision that gave the court continuing juris diction over the QDRO authorized it to alter the final decree of divorce.”). Signifi cantly, 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 ca se 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 cont inuing jurisdiction over a pension plan. {¶ 22} The trial court’s modification, in this case, did not fall with in 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 con sent requirement of the statute, we find appellant’s first assignment of error well-tak en. B. Civ.R. 60(B) Determination {¶ 23} While we agree with appellant that the trial court lacked juris diction 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 fo r 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 m istake occurred, the “lack of mutuality undermines the integrity” of the proceeding, “and may constitute sufficient12. 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); s ee 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 prop erty 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, n or address other types of

relief available under the Rule. {¶ 26} The statute applicable to property division, R.C. 3105.171, con tains 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 requiremen ts 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 s upport constituted a modification, noting: {¶ 28} In the realm of domestic-relations law, ‘modification order’ ha s a particular meaning:13. [a] post-divorce order that changes the terms of child support, custody, visitation, or alimony. A modification order may be a greed to by the parties or may be ordered by the court. The party wi shing to modify an existing order must show a material change in circumstances from the time when the order sought to be modifie d

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 payme nts 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, u nder R.C. 3105.171, concerns the present, one-time allocation of marital property t o 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 modificatio n 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 appr opriate procedural vehicle for requesting relief,” including vacation of the decree, as a limitation that “provides14. permanency to any [decree] that has remained unchallenged for o ne 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 divi sion 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 i ts 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 reservat ion of jurisdiction would be a sufficient basis to allow a court to mo dify a property division via Civ.R. 60(B)(1), (2), or (3) under the cu rrent 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 re quirement of R.C. 3105.171(I), permitting modification. Our case presents a whol ly separate issue, whether a court may grant relief other than modification, including vac ation of the property order or the decree. We find no prohibition, within the statute, to a court’s vacation of the15. 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 ret urn 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 fo r appellant’s argument that the trial court lacked jurisdiction t o consider relief other than modification to the existing property order, barring a Civ.R. 6 0(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 whi ch [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 cla im to present if the relief is granted, (2) is entitled to relief under one of the grounds sta ted in Civ.R. 60(B)(1) through (5), and (3) has made the motion within a reasonable ti me 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. ARC16. Industries, In c., 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 err or of judgment, and implies the trial court acted unreasonably, arbit rarily, 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 consid ering all three prongs of the

GTE test, arguing no meritorious defense, no mistake, and an untime ly motion. {¶ 36} Appellant first argues that the trial court erred in finding a meritorious defense in support of appellee’s motion for relief from judgmen t. The trial court found that the parties had intended to reach an equal division of mar ital property, which included the immediate, lump sum payment to appellee. Such a c laim, where supported by the record, is sufficient to demonstrate a meritorious defen se 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 app ropriate where judgment resulted in inequitable division of property and wife argued fr aud, duress, or undue influence). {¶ 37} The record demonstrates the parties contemplated a present paym ent of $110,000 to appellee, as a material term in the agreement for e qual 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 under stand this is not a quick process.” Appellant, moreover, acknowledged at hearing that sh e was to make a payment17. to appellee as part of the property settlement. Considering th e 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 co nsent judgment contained no language of an immediate, lump sum paymen t, 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 pay ment 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 testif ying as to the terms. The trial court also heard the testimony of the parties and appelle e’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 r elease the funds could take longer. At the hearing on appellee’s motion for relief from ju dgment, both parties acknowledged that they contemplated a lump sum payment as a ter m of the property settlement. Furthermore, while appellant received contrary adv ice 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 app ellee relied on that expert in agreeing to the settlement, and chose to remain silent and r eap the benefit from his misunderstanding of the facts. Based on these facts, we find n o 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 with in 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 amou nt of time for appellee to neglect his rights, because the information per taining to the OPERS account was readily available on the date the parties entered t he settlement and filed the consent judgment. This argument, however, requires a finding t hat 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 app ellee to relief from the judgment as it pertained to the property distribution. Based o n the record, there appears no undue delay between the time appellee discovered the impossi bility of a lump sum disbursement and the time appellee filed his motion seeking rel ief 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 err or not well-taken.

C. Disbursement Ordered {¶ 43} In her third assignment of error, appellant challenges the timi ng of disbursement ordered as remedy by the trial court based on modi fication to the property19. distribution. Because we determined the trial court lacked aut hority to modify the order without consent of the parties, we must necessarily find the mo dified terms improper. Accordingly, appellant’s third assignment of error is well-take n. III. Conclusion {¶ 44} For the forgoing reasons, we affirm, in part, the judgment of t he Erie County Court of Common Pleas as to appellee’s entitlement to re lief from judgment pursuant to Civ.R. 60(B). The trial court did not err in findi ng a material mistake, undermining the integrity of the parties’ agreement as to divis ion 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 c ourt to consider a remedy permitted under R.C. 3105.171. The parties shall split the cos ts 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 pur suant 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.

_______________________________ JUDGE20. This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.