[Cite as Casey v. Casey, 2024-Ohio-1808.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

GREENE COUNTY

THOMAS CASEY

 Appellant 

v. 

JENNIFER CASEY, nka BAIR

 Appellee

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C.A. No. 2023-CA-71

Trial Court Case No. 2016 DR 0031

(Appeal from Common Pleas CourtDomestic Relations)

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O P I N I O N

Rendered on May 10, 2024

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JAY M. LOPEZ and CHARLYNE L. ADAMS, Attorneys for Appellant

 

MATTHEW J. BARBATO and ERIN N. DINGLE, Attorneys for Appellee

 . . . . . . . . . . . . .

TUCKER, J.

{¶ 1} Thomas Casey appeals from a post-decree order granting his former wife 

possession of the marital residence, which had been awarded to him in the final judgment 

and decree of divorce. Casey argues that this order improperly modified the terms of the 

divorce decree. For the reasons that follow, we reverse the trial court’s order and 
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remand for further proceedings. 

I. Factual and Procedural Background

{¶ 2} Thomas Casey (“Casey”) and Jennifer Casey nka Bair (“Bair”) were married 

in 1998 and divorced in March 2017. A separation agreement was incorporated into their 

final judgment and decree of divorce. As relevant to this appeal, it contained the 

following provision:

Husband shall retain the marital residence and refinance the loan 

within the Sixty (60) month period or when approved.

Until such time that Husband has refinanced the property, Wife shall 

continue to ensure the homeowners insurance and property taxes are 

current and maintained. Wife shall add Husband as an authorized party to 

the loan policy, for information and payment. Wife shall take no legal 

action, bankruptcy or otherwise that would in any way harm husband[’]s use 

and right to the residence during the Sixty (60) month period given to 

refinance. In the event the home is destroyed or an insurance claim must 

be filed the profit shall solely be husband[’]s.

{¶ 3} In May 2022, Bair sought to have Casey held in contempt of court for failing 

to refinance the mortgage on the home as specified in the decree. After a hearing on 

October 4, 2022, the parties executed an agreed order which was filed on October 7, 

2022; the order required Casey to refinance the mortgage within 60 days. The order 

further required Casey to list the property for sale if he failed to accomplish the refinancing 
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by December 5, 2022, and it set the matter for a review hearing in January 2023. Finally, 

the order stated that “[i]f the property is closed upon, or sold and the husband receives 

the proceeds prior to the review hearing,” the motion to show cause would be dismissed. 

{¶ 4} On November 29, 2022, Casey filed a motion to extend the time for 

refinancing. Bair filed a memorandum in opposition. A status conference was 

conducted by telephone on February 10, 2023, and a final pretrial conference was set for 

March 3, 2023. Following the final pretrial conference, the court issued an order 

requiring Casey to complete the refinancing no later than March 20, 2023. The order 

further provided that, should Casey fail to refinance the loan, he would list the house for 

sale that same month. The issue of contempt for failing to refinance/sell the home was 

set for a final hearing on May 22, 2023. 

{¶ 5} The final hearing was conducted on May 22, 2023, but a transcript of that 

hearing is not part of the appellate record. After the hearing, the magistrate issued a 

decision stating that Casey had admitted he violated the decree of divorce by failing to 

refinance the residence within the 60-month deadline set by the decree. The magistrate 

found Casey in contempt and recommended a jail sentence of 30 days. The magistrate’s 

decision permitted Casey to purge the contempt by selling the residence prior to his 

sentencing hearing. Neither party filed objections to the magistrate’s decision, and, on 

June 21, 2023, the trial court adopted the decision. 

{¶ 6} The sentencing hearing was conducted on August 15, 2023; the trial court 

found Casey had failed to purge his contempt. The court ordered that the home be sold 

by October 5, 2023. 
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{¶ 7} On October 2, 2023, Bair filed a motion for sale of the property. After a 

conference on October 4, 2023, the trial court entered an order giving Casey 30 days to 

sell the house or to produce a contract for sale with proof of the buyer’s financing.

{¶ 8} A status hearing was conducted on November 7, 2023. On November 9, 

2023, the trial court ordered Casey to vacate the residence, granted Bair leave to take 

possession of the residence, and ordered Casey to “execute any documents necessary 

to clear the title [to the residence] of any dower interest.” The entry stated that, “should 

[Bair] sell the property * * *, she shall receive credit for any payments made for repairs to 

make the property sellable, and, if [Casey] makes a claim to any other proceeds 

recovered from the sale over and above those repairs, [Casey] must file a motion with the 

Court and provide proof that he is entitled to any portion thereof.” Casey filed a motion 

for reconsideration of this order, which was denied by the trial court. 

{¶ 9} Casey appeals. 

II. Decree and Agreed Order

{¶ 10} Casey’s first assignment of error states:

THE TRIAL COURT ABUSED ITS DISCRETION BY 

DISREGARDING THE TERMS OF THE DECREE OF DIVORCE FROM 

MARCH 20, 2017, AND MODIFYING THE PROPERTY SETTLEMENT 

WITHIN THE DECREE.

{¶ 11} Casey asserts that the trial court violated R.C. 3105.171(I) by modifying the 

terms of the divorce decree. Specifically, he argues that the November 9, 2023 order
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improperly permitted Bair to retain the residence. He further argues that the order

impermissibly permitted Bair to sell the residence and to recoup from the sale any monies 

expended for repairs made to the home. 

{¶ 12} R.C. 3105.171(I) prevents a trial court from modifying a final judgment and 

decree of divorce with respect to the division of property without the express written 

consent or agreement to the modification by both spouses. In Passage v. Passage, 2d 

Dist. Greene No. 2015-CA-36, 2016-Ohio-1097, we held that, under R.C. 3105.171(I), 

“parties can agree to give the trial court post-decree jurisdiction over property divisions. 

However, the court's ability to modify the property division should be narrowly limited to 

the terms expressed in the agreement, due to long-standing principles surrounding the 

finality of decrees.” Id. at ¶ 51. 

{¶ 13} The parties’ divorce decree did not give the trial court the authority to 

subsequently modify the decree. The decree awarded the marital home to Casey, but 

he was required to refinance the loan on the residence within 60 months. However, as 

conceded by Casey, the October 7, 2022 agreed order constituted an express written 

agreement to modify the decree insofar as it provided that, if Casey were unable to 

refinance the loan, he would sell the house and receive the proceeds from the sale. The 

record does not demonstrate that the parties consented to any other modifications of the 

decree. 

{¶ 14} We agree with Casey that the November 9, 2023 order modified the parties’ 

agreement without their express written consent. In that order, the trial court awarded 

possession of the home to Bair for the purpose of effectuating a sale of the home; it further 
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provided that, when the home was sold, Bair would be entitled to reimbursement of any 

amount spent to make the home sellable. These provisions were appropriate measures 

to enforce the parties’ agreement to sell the home. However, the language “should [Bair]

sell the property” seems to give her the option to forego a sale and retain the home, which 

constitutes an improper modification of the divorce decree and the October 7, 2022 

agreed order. Moreover, the November 9, 2023 order improperly required Casey, by 

motion, to litigate the issue of his entitlement to any sale proceeds. The trial court lacked 

authority to make these changes.

{¶ 15} The first assignment of error is sustained. 

III. Reconsideration

{¶ 16} Casey’s second assignment of error asserts:

THE TRIAL COURT ERRED IN DENYING PLAINTIFFAPPELLANT’S MOTION TO RECONSIDER JUDGMENT ENTRY FILED 

NOVEMBER 9, 2023, AS IT IS AGAINST THE MANIFEST WEIGHT OF 

THE EVIDENCE AND CONTRARY TO THE LAW.

{¶ 17} Casey contends that the trial court should have granted his motion for 

reconsideration of the November 9, 2023 judgment entry.

{¶ 18} We begin by noting that Casey appealed solely from the November 9, 2023 

judgment entry, not from the entry denying the motion for reconsideration. Thus, the 

denial of his motion for reconsideration is not before us. Further, even if that denial had 

been appealed, we could not consider it, because the Ohio Rules of Civil Procedure do 
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not provide for a motion for reconsideration of a final order. Tucker v. Pope, 2d Dist. Miami 

No. 2009-CA-30, 2010-Ohio-995, ¶ 25; Pitts v. Dept. of Transp., 67 Ohio St.2d 378, 379, 

423 N.E.2d 1105 (1981); Franklin Univ. v. Ellis, 10th Dist. Franklin No. 13AP-711, 2014-

Ohio-1491, ¶ 8. Therefore, any order that a trial court enters on a motion for 

reconsideration is a legal nullity. Tucker at ¶ 25, citing Robinson v. Robinson, 168 Ohio 

App.3d 476, 2006-Ohio-4282, 860 N.E.2d 1027, ¶ 17 (2d Dist.).

{¶ 19} Accordingly, Casey’s second assignment of error is overruled.

IV. Conclusion

{¶ 20} Having sustained Casey’s first assignment of error, the trial court’s 

November 9, 2023 order is reversed, and the matter is remanded to the trial court. On 

remand, the trial court shall issue an order requiring Bair to list the home for sale. The 

order may include a provision that Bair will be reimbursed for any necessary and 

reasonable expenses of the sale and any necessary and reasonable amount she must

spend to make the home sellable. The order shall provide that Casey will receive any 

sale proceeds remaining after the mortgage is satisfied and after Bair is reimbursed for 

these expenditures. 

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WELBAUM, J. and HUFFMAN, J., concur.