[Cite as Moore v. Moore, 2011-Ohio-4238.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 95967

TERESA MOORE

PLAINTIFF-APPELLEE 

vs. 

KEITH MOORE

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas, 

Domestic Relations Division 

Case No. D-314329 

BEFORE: Cooney, J., Stewart, P.J., and Jones, J. 

RELEASED AND JOURNALIZED: August 25, 2011 
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ATTORNEY FOR APPELLANT

Jaye M. Schlachet 

55 Public Square 

Suite 1600 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Janice Edgehouse Rieth 

Ryan P. Nowlin 

Schneider, Smeltz, Ranner & Lafond, P.L.L. 

1111 Superior Avenue, Suite 1000 

Cleveland, Ohio 44114 

COLLEEN CONWAY COONEY, J.: 

{¶ 1} Defendant-appellant, Keith Moore (“Keith”), appeals the trial 

court’s judgment granting plaintiff-appellee, Teresa Moore’s (“Teresa”), 

motions for relief from judgment, for attorney fees, and for application of 

escrow funds. We find no merit to the appeal and affirm. 

{¶ 2} Teresa filed a complaint for divorce in January 2007. At the 

time of filing, the parties had one minor child and one adult child. They also 

owned real estate located on Meadowhill Lane in Moreland Hills, Sutton 

Road in Shaker Heights, Milverton Road in Shaker Heights, East Boulevard 

in Cleveland, Parkview Avenue in Cleveland, and East 139th Street in 

Garfield Heights. In December 2007, the parties entered into an agreed 
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judgment entry that required that all of the real estate be listed for sale 

during the pending divorce proceedings. 

{¶ 3} Keith lived at the parties’ former marital home on Meadowhill 

Lane (the “Meadowhill property”). When Teresa moved out of the house in 

January 2007, there was no mortgage on the property. Pursuant to the 

agreed judgment entry, Keith was to keep a lockbox on the property so that a 

realtor could show the property to prospective buyers. Keith also agreed to 

clean up certain areas around the front entrance of the house, the master 

bedroom, the garage, and the laundry room. 

{¶ 4} Keith paid the utilities for the house, but not the real estate 

taxes. As a result, by the time the case was ready for trial in May 2008, the 

property was in foreclosure because of the delinquent property taxes. The 

parties filed several motions to show cause accusing each other of failing to 

manage and sell their properties. As a result of mutual allegations of 

financial misconduct and several motions to show cause, the court appointed 

a receiver to take possession of the properties and to take any necessary 

action to protect and preserve the marital assets. 

{¶ 5} In May 2008, the parties reached an agreement settling their 

divorce. Teresa’s lawyer, Janice Rieth (“Rieth”), typed the settlement 

agreement, which was approved and journalized by the court on May 28, 
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2008. The settlement agreement provided that after the sale of the real 

estate, all of the net proceeds, after payment of real estate commissions, 

closing costs, tax liens or outstanding real estate taxes and mortgages, were 

to be deposited into a joint escrow account. Any proceeds remaining in 

escrow after all expenses had been paid, were to be divided equally between 

the parties. The journal entry (“JE”) of divorce also equally divided the 

parties’ investment accounts, bank accounts, and debts. 

{¶ 6} On June 20, 2008, less than one month after the divorce decree, 

Keith filed a motion to show cause alleging that Teresa failed to comply with 

the terms of the May 28, 2008 JE of divorce. In his affidavit supporting the 

motion, Keith stated: 

“¶4 of the agreement, incorporated into the judgment entry of divorce, 

provided that certain marital accounts under the control of Plaintiff 

were to be equally divided as of May 31, 2008. Despite a direct 

agreement and court order, Plaintiff has refused to produce the 

statements as required and has refused to equally divide the accounts.” 

{¶ 7} In July 2008, Teresa filed a motion to correct judgment entry 

nunc pro tunc or to vacate judgment entry and a motion for attorney fees. In 

the motion, Teresa asked the court to change the date on which the parties’ 

accounts were to be divided from May 31, 2007 to May 31, 2008. Despite 

having acknowledged the May 31, 2008 date in his affidavit, Keith opposed 

the motion, arguing that the court did not have jurisdiction to rule on her 
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motion because Teresa had not expressly mentioned Civ.R. 60(B) in the 

motion and because a Civ.R. 60(B) motion is not a substitute for an appeal. 

{¶ 8} In the motion for attorney fees, Teresa sought reimbursement of 

fees she incurred: (1) in prosecuting a motion to evict Keith from the 

Meadowhill property, (2) in litigation related to the sale of the Meadowhill 

property, and (3) in prosecuting the motion to correct the May 28, 2008 JE of 

divorce. The court granted the motion, in part, awarding $11,069.00 in 

attorney fees. 

{¶ 9} Finally, Teresa filed a motion to determine application of escrow 

funds. After the divorce was finalized, Teresa sought additional funds from 

the escrow account to cover the expenses she incurred as a result of 

complying with housing court orders to maintain the parties’ properties and 

for additional future expenses. The court granted the motion, which Keith 

had opposed, and identified a list of expenses to be paid from the escrow 

funds. 

{¶ 10} Keith now appeals, raising three assignments of error. 
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Motion to Correct Judgment Entry

{¶ 11} In the first assignment of error, Keith argues the trial court erred 

in granting Teresa’s motion to correct the judgment entry nunc pro tunc or, in 

the alternative, for relief from judgment. He contends the court should have 

denied the motion because Teresa never appealed the judgment, did not 

expressly cite Civ.R. 60(B) in her motion, and because Civ.R. 60(B) is not a 

substitute for an appeal. 

{¶ 12} A motion for relief from judgment pursuant to Civ.R. 60(B) and a 

notice of appeal from a judgment are not the same remedies, and a party 

cannot use Civ.R. 60(B) relief as a substitute for a timely appeal. Blasco v. 

Mislik (1982), 69 Ohio St.2d 684, 686, 433 N.E.2d 612; Doe v. Trumbull Cty. 

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

of the syllabus. In Blasco, the Ohio Supreme Court held that where the 

movant’s “contentions merely challenge the correctness of the court’s decision 

on the merits and could have been raised on appeal,” they may not be 

asserted in a motion for relief from judgment. Id. Relief sought pursuant to 

Civ.R. 60(B), on the other hand, may only be provided if the movant 

demonstrates she is entitled to relief under one of the grounds stated in 

Civ.R. 60(B)(1) through (5), which allow relief for reasons other than 

challenging the propriety of the court’s judgment. GTE Automatic Elec., Inc. v. 
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ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the 

syllabus. Thus, it must first be determined whether Teresa properly filed a motion for relief 

from judgment or whether she should have appealed the court’s judgment. 

{¶ 13} Teresa filed her motion to correct the judgment on July 25, 2008. At that time, 

the trial court had not yet resolved the issue of child support for the parties’ minor child. 

Civ.R. 75(F) prohibits a trial court from entering a final judgment unless the judgment 

allocates parental rights and responsibilities, including the payment of child support. Civ.R. 

75(F); Wilson v. Wilson, 116 Ohio St.3d 268, 2007-Ohio-6056, 878 N.E.2d 16, ¶15. 

Although the parties’ settlement agreement specifically stated that the court was to determine 

child support, the trial court did not issue a final child support order until January 16, 2009, 

almost six months after Teresa filed her motion to correct the judgment. Therefore, because 

the May 28, 2008 JE of divorce was not a final, appealable order, a motion to correct a 

judgment pursuant to Civ.R. 60(A) or (B) was the appropriate vehicle for obtaining the desired 

relief. 

{¶ 14} Keith argues that Teresa’s motion to correct the judgment should have been 

denied because she did not expressly cite Civ.R. 60(B) as the authority for her motion. 

However, Keith does not cite any authority requiring the moving party to actually mention 

Civ.R. 60(B) in a motion for relief from judgment. To dismiss the motion simply because it 

did not mention the “magic words” of a rule would elevate form over substance and 
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contravene the mandate contained in Civ.R. 1(B) that requires the Civil Rules be applied “to 

effect just results.” Commenting on this rule, the Ohio Supreme Court has said that “[t]he 

spirit of the Civil Rules is the resolution of cases upon their merits, not upon pleading 

deficiencies.” Peterson v. Teodisio (1973), 34 Ohio St. 2d 161, 175, 297 N.E.2d 113. See, 

also, Gordon v. Gordon, 98 Ohio St.3d 334, 2003-Ohio-1069, 784 N.E.2d 1175, ¶13. 

Therefore, Teresa’s failure to cite the rule was not fatal to her motion. 

{¶ 15} To prevail on a Civ.R. 60(B) motion, the moving party must establish three 

requirements: (1) that the party has a meritorious defense or claim to present if relief is 

granted; (2) that 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. GTE at 

paragraph two of the syllabus. 

{¶ 16} Civ.R. 60(A), which governs nunc pro tunc judgments, provides that “[c]lerical 

mistakes in judgments * * * 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.* * * .”

{¶ 17} The purpose of a nunc pro tunc order is to correct the record to reflect what the 

court actually decided and may not be used to change a prior judgment unless the earlier entry 

did not accurately reflect the court’s action. Dentsply Internatl., Inc. v. Kostas (1985), 26 

Ohio App.3d 116, 498 N.E.2d 1079, paragraphs one and two of the syllabus. Nunc pro tunc 
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orders are used to supply information that existed but was not recorded, to correct 

mathematical calculations, and to correct typographical or clerical errors. Id. 

{¶ 18} Teresa argued that the JE of divorce should be changed or vacated to correct a 

mistake. Mistake is a valid ground for relief under Civ.R. 60(B)(1). Teresa asked the court 

to change the date in paragraph 4 of the parties’ settlement agreement, which was incorporated 

into the JE of divorce, to reflect that the parties’ accounts would be divided as of May 31, 

2008 instead of May 31, 2007. Teresa filed the motion on July 24, 2008, less than two 

months after the JE of divorce was journalized. 

{¶ 19} In an affidavit supporting the motion, Attorney Rieth stated that she 

“inadvertently typed that the accounts would be divided as of May 31, 2007, rather than 

2008.” She also stated that she discovered the mistake when Teresa provided her copies of 

the May 31, 2008 statements and a check for Keith’s share of each account. After failing to 

resolve the issue with a stipulated nunc pro tunc order, Rieth promptly filed the motion. On 

the face of the motion, which was timely filed, Teresa demonstrated a meritorious claim for 

relief under Civ.R. 60(B)(1). 

{¶ 20} At the hearing on the motion, Rieth testified that she was in a hurry when she 

typed the settlement agreement and inadvertently substituted May 31, 2007 for May 31, 2008. 

 She also introduced her notes from May 27, 2008, the day the parties negotiated the 

settlement, which indicated that the parties had values for two of the accounts as of March 
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2008 and a value for a third account as of April 2008. This suggests that the parties intended 

and were planning to divide the accounts as of May 31, 2008. There would be no reason to 

compile the accounts in the spring of 2008 if the parties had intended to divide the accounts as 

of May 31, 2007. 

{¶ 21} Furthermore, the parties already had specific values for the accounts as of May 

31, 2007 and, thus, could have specified the balances in the settlement agreement if that was 

their intention. It was only because they did not have the current account balances for all the 

accounts as of a consistent date at the time of trial that they decided to obtain the statements 

for a certain date in the near future, May 31, 2008. Moreover, Keith admitted in his affidavit 

in support of his motion to show cause that the accounts were to be divided as of May 31, 

2008. Keith’s claim that the parties intended to divide the marital accounts as of May 31, 

2007 is not credible under the facts of this case. The evidence adduced at the hearing 

supported the court’s conclusion that the JE of divorce should be changed to reflect the 

parties’ intentions at the time they entered into the settlement agreement. 

{¶ 22} Accordingly, the first assignment of error is overruled. 

Attorney Fees

{¶ 23} In his second assignment of error, Keith argues the trial court abused its 

discretion when it awarded Teresa partial reimbursement for her attorney fees. The trial 

court determined that Teresa was entitled to attorney fees incurred as a result of litigation over 
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the sale of the Meadowhill property and for her effort to obtain a nunc pro tunc order or vacate 

the May 28, 2008 JE. Teresa’s other requests for attorney fees on unrelated issues were 

denied. 

{¶ 24} Keith contends Teresa is not entitled to attorney fees for her motion to correct 

the JE nunc pro tunc because it was due to her attorney’s error and he should not have to pay 

for her mistake. He also argues that he did not agree that the May 28, 2008 JE of divorce 

should be vacated and that litigation over the sale of the Meadowhill property was 

unnecessary. 

{¶ 25} Our review of attorney fee awards is limited to determining (1) whether the 

factual considerations upon which the award was based are supported by the manifest weight 

of the evidence, or (2) whether the domestic relations court abused its discretion. Gourash v. 

Gourash (Sept. 1999), Cuyahoga App. Nos. 71882 and 73971, citing Oatey v. Oatey (1992), 

83 Ohio App.3d 251, 614 N.E.2d 1054. 

{¶ 26} R.C. 3105.73(A), which governs attorney fee awards in domestic relations 

cases, provides: 

“In an action for divorce * * * or an appeal of that action, a court may award all or part 

of reasonable attorney’s fees and litigation expenses to either party if the court finds 

the award equitable. In determining whether an award is equitable, the court may 

consider the parties’ marital assets and income, any award of temporary spousal 

support, the conduct of the parties, and any other relevant factors the court deems 

appropriate.”
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{¶ 27} The trial court’s award of attorney fees was justified by Keith’s conduct in both 

instances. In defiance of the express terms of the parties’ June 12, 2007 agreed judgment 

entry and the May 28, 2008 JE of divorce, Keith thwarted Teresa’s efforts to sell the 

Meadowhill property. He failed to make necessary repairs specified in the agreement to 

prepare the house for sale. Once the house was on the market, he refused to permit real 

estate agents to show the house to prospective buyers. When a buyer offered to buy the 

property for over 85% of the asking price, Keith refused to sign the purchase agreement even 

though the price was within the range stipulated in the parties’ agreement. Teresa filed a 

motion to show cause and an emergency motion to authorize the sale of real estate to enforce 

the parties’ agreement and to avoid losing the sale of the house. 

{¶ 28} After the sale of the property, Keith refused to move out of the house, claiming 

he had no place to go and that he could not afford to rent a truck to move his belongings. On 

July 21, 2009, Teresa filed an emergency motion for an order evicting Keith from the 

premises. The court granted the motion and ordered Keith to move out of the house by 

August 4, 2009. In another motion to show cause filed on August 6, 2009, Teresa alleged 

that Keith had not vacated the Meadowhill property as of July 31, 2009, which was the closing 

date specified in the purchase agreement. Teresa later alleged that Keith still had not vacated 

the property on August 4, 2009, the court’s deadline. 
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{¶ 29} Teresa believed court action was necessary to enforce the agreed judgments and 

to preserve marital assets. In light of Keith’s attempts to undermine the sale of the 

Meadowhill property and to remain in the house after the property was sold, we cannot say the 

court abused its discretion in awarding attorney fees incurred in prosecuting that matter. 

{¶ 30} Keith’s conduct with regard to the nunc pro tunc entry also justified an award of 

attorney fees. Although Rieth made the mistake in the original settlement agreement, she 

attempted to correct the error with minimal expense by joint stipulation. Keith not only 

refused to stipulate to the mistake but attempted to use the mistake to renegotiate some 

financial aspects of the divorce. The balances of the parties’ joint investment accounts were 

much higher on May 31, 2007 than on May 31, 2008 because Teresa used money in the 

accounts during the year to pay marital debts and monthly expenses related to the parties’

properties. During that year, Keith did not contribute to payment of the marital debts or 

expenses. Consequently, a division of the accounts as of May 31, 2007 would have caused 

Teresa to be responsible for a substantially larger than equal share of the marital debt and 

expenses related to the parties’ properties. 

{¶ 31} Because Keith contested the motion, Teresa was forced to prove that the change 

she sought the court to make in the JE of divorce was merely a correction of a typographical 

error. Her lawyer was forced to file a motion to correct the judgment entry and prosecute the 

motion at a hearing in open court. These actions took time for which Rieth charged Teresa 
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fees. Since Keith could have easily prevented the time and expense incurred in prosecuting 

the motion by stipulating to the obvious clerical error, and because his arguments in opposition 

to the motion were not credible, it was reasonable for the court to hold him accountable for the 

expense he unnecessarily caused Teresa to incur. 

{¶ 32} In determining the amount of reasonable attorney fees, the court considered 

whether all of the legal services were necessary and the amount of time expended on those 

services. Counsel’s hourly rates for law partners and associates were commensurate with the 

customary fees in this locality, and Keith never challenged the hourly rates. Therefore, we 

find that the award of attorney fees was supported by competent, credible evidence and was 

not an abuse of discretion. 

{¶ 33} Accordingly, the second assignment of error is overruled. 

Application of Escrow Funds

{¶ 34} In the third assignment of error, Keith argues the trial court erred in granting 

Teresa’s motion to determine application of escrow funds because the court’s application of 

the escrow funds awarded Teresa a larger than equal share of the marital assets. Keith 

contends the court’s order allowed Teresa to keep money she obtained from refinancing two of 

the parties’ properties without accounting for where the money was spent while depriving him 

of his share of money. Keith claims he should have been awarded all the net proceeds of the 
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sale of the Meadowhill property while Teresa should pay any and all expenses related to the 

rental properties to compensate him for his share of the “missing” refinancing proceeds. 

{¶ 35} However, the refinancing occurred in December 2006, prior to the parties’

separation and divorce. Although Keith claimed at the hearing on the motion that he was 

unaware of the refinancing, he was present when the houses were appraised. Further, 

Attorney Rieth testified that she presented an accounting to Keith’s counsel during the 

settlement negotiations prior to the divorce decree that showed how the refinancing proceeds 

were used. If he thought the accounting was inaccurate, he could have challenged it before 

the divorce was finalized. The trial court concluded that Keith’s claim of ignorance about the 

refinancing and accounting of alleged missing assets was less than credible. We defer to the 

trial court on matters of credibility. Season Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 

461 N.E.2d 1273. 

{¶ 36} Moreover, the parties’ settlement agreement, which was incorporated into the 

court’s JE of divorce, specifically provided for an equal distribution of proceeds from the sale 

of all properties, after all expenses, including repair costs to correct code violations and back 

taxes, had been paid. It was anticipated that the parties’ home and the East Boulevard 

property would require demolition, which could cost as much as $50,000. Although the 

estimate was speculative, the parties’ agreement required the proceeds from the sales be held 

in escrow until all expenses incurred in bringing the properties up to code are paid in full. 
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{¶ 37} In determining the application of escrow funds, the court enumerated a list of 

expenses from the parties’ properties. The expenses included real estate taxes, tax services, a 

water bill, lawn care, fencing, and demolition. Because all these expenses must be paid from 

the escrow funds under the parties’ agreement, we find no abuse of discretion in granting this 

application of escrow funds. 

{¶ 38} Accordingly, the third assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellee recover of appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

domestic relations court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

___________________________________________________ 

COLLEEN CONWAY COONEY, JUDGE 

MELODY J. STEWART, P.J., and 

LARRY A. JONES, J., CONCUR