[Cite as In re J.M. v. A.M., 2022-Ohio-1092.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

In re: J.M., :

Petitioner-Appellee, :

 No. 19AP-832

v. : (C.P.C. No. 16DR-3832)

A.M., : (REGULAR CALENDAR)

Petitioner-Appellant. :

D E C I S I O N

Rendered on March 31, 2022

On brief: Sowald Sowald Anderson & Hawley, and Marty 

Anderson, for appellee. Argued: Marty Anderson.

On brief: The Behal Law Group LLC, Robert J. Behal, and 

DeAnna J. Duvall, for appellant. Argued: Robert J. Behal.

APPEAL from the Franklin County Court of Common Pleas,

Division of Domestic Relations

KLATT, J.

{¶ 1} Petitioner-appellant, A.M., appeals a judgment of the Franklin County Court 

of Common Pleas, Division of Domestic Relations, that granted petitioner-appellee, J.M., 

relief from the judgment dissolving the parties' marriage. For the following reasons, we 

reverse the trial court's judgment.

{¶ 2} The parties started dating in high school, and they married on August 13, 

1988. During the marriage, the parties had two children: a son born in 1992 and a daughter 

born in 1995.
No. 19AP-832 2

{¶ 3} J.M. worked as a physical therapist throughout most of the marriage. 

Initially, A.M. worked in the plumbing and pipefitting field. In 2000, A.M. founded Capital 

City Mechanical, Inc., a mechanical contracting business that he continues to operate today.

{¶ 4} According to J.M., beginning around 2012, the stresses in her life began to 

accumulate. Her son was hospitalized repeatedly for anxiety disorder, A.M.'s aunt and 

father were ill, and then A.M.'s father passed away. J.M. further explained:

[Capital City Mechanical] was growing rapidly. My mom had 

had back surgery. I would take care of her and work at the same 

time.

* * *

I coached volleyball. Then my mom came home [from Florida] 

in the spring of 2015 and her health started to deteriorate. At 

the same time my dad was having issues, and he had to have an 

unexpected heart surgery. He passed away unexpectedly as a 

result of that surgery.

* * *

And then my mom was having difficulty caring for herself. We 

had to take care of getting rid of a condo in Florida. My mom's 

health would go up and down. * * * [M]y mom would at times 

have 10 to 12 doctors' appointments a week. I would be taking 

her to that, working, [and] trying to keep up on our residence 

because [A.M.] was never home.

(Tr. at 46-47.)

{¶ 5} Additionally, at some point in 2013, J.M. began to suspect that A.M. was 

having an extramarital affair. J.M. started driving around at night looking for A.M. With 

all the demands and stresses on her, J.M. coped by drinking alcohol.

{¶ 6} A.M. admitted to J.M. that he was having an affair with J.F. sometime in June 

or July of 2015. According to A.M., J.M. was engaging in extramarital relationships by this 

time, but J.M. denies this.

{¶ 7} In August 2015, on a vacation to celebrate their anniversary, A.M. asked J.M. 

if they could "have it both ways," meaning "[h]e could do what he wanted to on the 

weekends and occasionally go away on trips with who he wanted to, and [she] could do the 

same." Id. at 55. By her recollection, J.M. was upset and bewildered by this request for an 
No. 19AP-832 3

open relationship. However, when the parties returned to Ohio, J.M. sought out J.F. 

because she found out that A.M. and J.F. "were considering including someone else in their 

relationship." Id. at 295. J.M. initiated an intimate relationship with J.F. that eventually 

included A.M. J.M. claimed that she entered into this relationship "to save [her] marriage" 

and it did not last long. Id. at 56.

{¶ 8} The parties disagree on the circumstances that led to the creation of their 

separation agreement. According to J.M., in early spring 2016, A.M. told her, "in order

* * * to work on [their] marriage, he had to know that [Capital City Mechanical] would be 

secure and that it would be able to run itself so that [they] could take the time away from 

the company to get things together and [ ] work on [their] marriage so that [they] could 

save it." Id. at 59. Consequently, A.M. "needed to get something on paper that would allow 

him to know that the company could be secure." Id. A.M. then asked J.M. to "write stuff 

down" and "divide things out." Id. at 59, 141. A.M. also suggested that they contact Steve 

Miller, an attorney, because friends of theirs had obtained his assistance when undergoing 

a dissolution.

{¶ 9} According to A.M., during an argument between the parties, J.M. brought up 

a mutual friend who had gotten a dissolution. J.M. asked A.M. what attorney the friend 

had used for the dissolution. A.M. answered, "Steve Miller," and J.M. said, "Well, call Steve 

Miller on Monday." Id. at 513. A.M. did.

{¶ 10} A.M. and J.M. first met with Miller at Memories, a bar and restaurant located 

in Grove City, on April 12, 2016. During that meeting, which lasted approximately one

hour, J.M. drank three to five beers. Miller asked the parties to provide him a list of marital 

assets and liabilities, and to designate on the list which spouse was to receive which asset 

and liability. After the meeting, the parties created such a list, which A.M. provided to 

Miller. Miller used the list to draft a separation agreement. A.M. and J.M. then negotiated 

further, and A.M. provided Miller with another list of terms to incorporate into the 

separation agreement. On June 22, 2016, Miller emailed A.M. a newly revised draft of the 

separation agreement in red-line form. A.M. gave J.M. a copy of this draft agreement, 

entitled "PROPERTY SETTLEMENT AND SEPARATION AGREEMENT." (J.M.'s Ex. 24.) 

A.M. called Miller with only one change to the agreement. 
No. 19AP-832 4

{¶ 11} A.M. and J.M. met with Miller at Memories again on June 24, 2016. Miller 

had with him a final version of the separation agreement. According to J.M., upon 

reviewing the document, she saw for the first time the words "Separation Agreement." J.M. 

"was just floored because that [was] not what [she] thought [they] were doing," and she 

began to cry. (Tr. at 73.) According to J.M., she was "[j]ittery, nervous, crying, [and] just 

beside [her]self" throughout the meeting. Id. at 75. By her own account, J.M. also drank 

three to five beers over the course of the two- to two-and-one-half-hour meeting. 

{¶ 12} During the meeting, Miller went through the separation agreement, 

explaining it to A.M. and J.M. While Miller reviewed the agreement, J.M. noticed a few 

mistakes, which Miller corrected. The parties initialed Miller's handwritten corrections and 

executed the separation agreement.

{¶ 13} Miller explained to the parties that they had entered into a binding 

agreement, but they did not necessarily need to proceed with a dissolution of their 

marriage. J.M. understood that Miller was going to "hold on" to the separation agreement. 

Id. at 207. If she or A.M. wanted a dissolution, Miller would file the agreement, along with 

additional paperwork, with the trial court. 

{¶ 14} At some point during the meeting, J.M. excused herself to visit the restroom. 

While returning from the restroom, J.M. stopped by the table of a friend, P.C. J.M. told 

P.C., "We are here for our divorce. We are trying to get it straightened out, and this is the 

attorney." Id. at 10.

{¶ 15} On July 8, 2016, J.M. emailed Miller, stating, "I would like to move forward 

with the agreement and from the conversation on Friday, June 24th, I gather that means 

you have to proceed in the legal manner you set forth." (A.M.'s Ex. D.) J.M. followed up 

that email with a second email dated July 25, 2016, stating, "Please move forward with the 

dissolution please." (A.M.'s Ex. G.)

{¶ 16} According to J.M., she asked Miller to proceed with the dissolution because 

of the escalating discord and violence between her and A.M. In one fight between the 

parties, J.M. jumped into A.M.'s truck as A.M. was pulling away and the two tussled as A.M. 

drove on the freeway. Additionally, during this time, J.M. was drinking so much that she 

was blacking out. 
No. 19AP-832 5

{¶ 17} Even though she asked for the dissolution, J.M. contends that what she really 

wanted was for A.M. "to give [her] a lifeline" and "come back and save [their] marriage 

together." (Tr. at 300.) In J.M.'s own words, she "was spiraling out of control. [She] was 

drinking a lot. [She] just needed somebody to help [her]. [She] had no family that knew 

anything that was going on. [She] had wrecked her truck. * * * [She] was desperate, 

desperate at that point for [A.M.] to save [her]." Id. at 301. 

{¶ 18} On October 10, 2016, the parties filed a joint petition for dissolution. The trial 

court held a hearing on the parties' petition on November 17, 2016. Both J.M. and A.M. 

attended that hearing and gave sworn testimony. On November 18, 2016, the trial court 

issued a decree of dissolution that incorporated the parties' separation agreement. 

According to that decree, both parties testified at the November 17, 2016 hearing that they 

"voluntarily entered into the Separation Agreement and agreed to the terms contained 

therein and each Petitioner is satisfied with the terms thereof[,] [and] that each Petitioner 

voluntarily sought dissolution of their marriage and desires to have the marriage 

dissolved." (Nov. 18, 2016 Decree of Dissolution of Marriage.)

{¶ 19} On October 26, 2017, J.M. filed a Civ.R. 60(B) motion for relief from the 

November 18, 2016 judgment. The trial court held a hearing on the motion. J.M., A.M., 

and Miller testified at the hearing. In a judgment dated November 12, 2019, the trial court 

granted J.M.'s motion.1

{¶ 20} A.M. now appeals the November 12, 2019 judgment, and he assigns the 

following error:

The trial court erred to the prejudice of Appellant-Husband 

and abused its discretion in granting relief from judgment 

pursuant to Civ.R. 60(B) against the manifest weight of the 

evidence.

{¶ 21} Pursuant to Civ.R. 60(B), a court may relieve a party from a final judgment, 

order, or proceeding for the following reasons: 

(1) mistake, inadvertence, surprise or excusable neglect; 

1

 In reciting the facts, we have excluded any evidence offered at the hearing that the trial court found not 

credible in its decision granting J.M. relief from judgment. Consequently, we do not discuss J.C.'s testimony 

or Miller's testimony regarding J.M.'s demeanor during the June 24, 2016 meeting.
No. 19AP-832 6

(2) newly discovered evidence which by due diligence could 

not have been discovered in time to move for a new trial under 

Rule 59(B); 

(3) fraud (whether heretofore denominated intrinsic or 

extrinsic), misrepresentation or other misconduct of an 

adverse party; 

(4) the judgment has been satisfied, released or discharged, or 

a prior judgment upon which it is based has been reversed or 

otherwise vacated, or it is no longer equitable that the 

judgment should have prospective application; or 

(5) any other reason justifying relief from the judgment. 

Civ.R. 60(B)(1)through (5). To prevail on a Civ.R. 60(B) motion, a party must demonstrate 

that: (1) it has a meritorious claim or defense to present if the court grants it relief; (2) it is 

entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) it 

filed the motion within a reasonable time and, when relying on a ground for relief set forth 

in Civ.R. 60(B)(1), (2), or (3), it filed the motion not more than one year after the judgment, 

order, or proceeding was entered or taken. GTE Automatic Elec., Inc. v. ARC Industries, 

Inc., 47 Ohio St.2d 146 (1976), paragraph two of the syllabus. If the moving party fails to 

demonstrate any of these three requirements, the trial court should overrule the motion. 

Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20 (1988). A trial court exercises its 

discretion when ruling on a Civ.R. 60(B) motion, and, thus, an appellate court will not 

disturb such a ruling absent an abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77 

(1987).

{¶ 22} In the case at bar, J.M. never articulated which particular Civ.R. 60(B)(1)

through (5) ground or grounds on which she sought relief from judgment. Likewise, the 

trial court did not identify which particular Civ.R. 60(B)(1) through (5) ground or grounds 

on which it granted relief from judgment. We base our review, therefore, on the trial court's 

general description of the three bases for relief the trial court considered in its decision: 

(1) A.M. did not fully and accurately disclose the value of Capital City Mechanical, (2) the 

parties failed to immediately separate after entering into the separation agreement on 

June 24, 2016, and (3) J.M. lacked the capacity to execute the separation agreement and 
No. 19AP-832 7

decree of dissolution. We will correlate these bases with a specific Civ.R. 60(B) ground for 

relief to determine whether the trial court erred in granting relief on each basis.

{¶ 23} Initially, we are mindful that "[a] court must be diligent in its analysis when 

a party seeks relief from a dissolution of marriage." McLoughlin v. McLoughlin, 10th Dist. 

No. 05AP-621, 2006-Ohio-1530, ¶ 24. "[M]utual consent is the cornerstone of [ ] 

dissolution law." Knapp v. Knapp, 24 Ohio St.3d 141, 144 (1986). To obtain a dissolution, 

spouses must jointly petition the court and attach to their petition a separation agreement 

executed by both spouses. R.C. 3105.63(A). Both spouses must appear before the court 

and verify that they voluntarily agreed to the separation agreement, they are satisfied with 

its terms, and they seek dissolution of the marriage. R.C. 3105.64(A). If either spouse 

becomes dissatisfied with the separation agreement, the court must dismiss the petition for 

dissolution and refuse to validate the proposed separation agreement. R.C. 3105.65(A).

{¶ 24} Consequently, when seeking relief from a dissolution, the moving party is 

essentially asking the court for a release from the party's own promise. McLoughlin at ¶ 24. 

"Courts must be wary and ensure that relief under Civ.R. 60(B) is justified, not merely a 

tool used 'to circumvent the terms of a [separation] agreement simply because, with 

hindsight, [the moving party] has thought better of the agreement which was entered into 

voluntarily and deliberately.' " Id., quoting Biscardi v. Biscardi, 133 Ohio App.3d 288, 292 

(7th Dist.1999).

{¶ 25} As we stated above, the trial court first granted J.M. relief from judgment 

because A.M. failed to determine and report to J.M. the value of Capital City Mechanical, 

the business A.M. founded during the marriage. Capital City Mechanical is a corporation, 

so the asset at issue is not the business itself, but shares of stock in the business. We 

conclude the trial court erred in granting relief from judgment on the basis that no valuation 

of the Capital City Mechanical stock occurred. 

{¶ 26} Pursuant to former Loc.R. 17 of the Franklin County Court of Common Pleas, 

Division of Domestic Relations, "[u]pon the filing of a petition for dissolution, each spouse 

so filing * * * shall file an affidavit of property * * *, together with any other relevant 

information concerning such listing that is within their knowledge."2 The complete 

2 In amendments effective May 13, 2019, the trial court expanded Loc.R. 17. The portion of Loc.R. 17 

relevant to this case remained substantively unchanged, although it is now specifically designated Loc.R. 

17(C). 
No. 19AP-832 8

omission of an asset from the affidavit required under Loc.R. 17 may be grounds for setting 

aside a decree of dissolution under Civ.R. 60(B)(5). Lewis v. Lewis, 10th Dist. No. 09AP594, 2010-Ohio-1072, ¶ 19; McLoughlin at ¶ 30. Likewise, "when a separation agreement 

omits assets that are substantial in relative amount and material to an informed and 

deliberate agreement about an equitable division of the property," a court may grant relief 

from judgment under Civ.R. 60(B)(5). In re Murphy, 10 Ohio App.3d 134, 137 (1st 

Dist.1983).

{¶ 27} Omission of an asset warrants relief from a dissolution decree because both 

parties must consent and agree to the terms of the separation agreement. The separation 

agreement must provide for a division of all property. R.C. 3105.63(A)(1). If a substantial 

and material asset is omitted, then consent or mutual agreement to an equitable division of 

property cannot exist, precluding an agreement upon which the dissolution decree can be 

based. In re Whitman, 81 Ohio St.3d 239, 241 (1998); Murphy at 137. "This lack of 

mutuality undermines the integrity of the dissolution proceeding and may constitute 

sufficient grounds to set aside the decree under Civ.R. 60(B)." Whitman at 241.

{¶ 28} Here, neither the settlement agreement nor A.M.'s Loc.R. 17 affidavit of 

property omitted the Capital City Mechanical stock. The settlement agreement addressed 

A.M.'s shares in Capital City Mechanical, stating, "Husband shall retain as his own separate 

property, free and clear of any claim of Wife, his entire interest in Capital City Mechanical, 

Inc., an Ohio corporation (the "Business"), which equals 100% [of] all issued and 

outstanding shares of the Business, as well as all distributions and income earned." 

(Property Settlement and Separation Agreement at Art. VII, Sec. 1.) Moreover, A.M.'s 

Loc.R. 17 affidavit of property lists "Capital City Mechanical, Inc." under "Closely Held 

Stocks & Other Business Interests." (A.M.'s Aff. of Property at Sec. II, Subsec. E.)

{¶ 29} Instead of complaining that A.M. omitted the Capital City Mechanical stock 

from the Loc.R. 17 affidavit or separation agreement, J.M. asserts that A.M. failed to assign 

a value to his shares of stock. A.M.'s Loc.R. 17 affidavit of property only indicates that the 

value of the stock is "[u]nknown." (A.M.'s Aff. of Property at Sec. II, Subsec. E.) Based on 

the failure to obtain and disclose a valuation, J.M. argues she is entitled relief from 

judgment.
No. 19AP-832 9

{¶ 30} We considered this exact argument in McLoughlin, 10th Dist. No. 05AP-621, 

2006-Ohio-1530. There, the marital assets included the husband's retirement account with 

the Ohio Employees Retirement System ("OPERS"). In their separation agreement, the 

parties agreed to divide the value of the contributions made to the OPERS account during 

the marriage. Id. at ¶ 5. The husband's Loc.R. 17 affidavit included the OPERS account, 

but the affidavit did not disclose the value of the account. Id.

{¶ 31} After the trial court issued a decree of dissolution, the wife filed a motion for 

relief from judgment pursuant to Civ.R. 60(B). In her motion, the wife argued that the trial 

court should set aside the decree of dissolution because the husband had failed to disclose 

the value of his OPERS account. Id. at ¶ 8. The trial court denied the wife relief from 

judgment. Id. at ¶ 12. 

{¶ 32} On appeal, the wife argued that the trial court erred by ignoring the binding 

precedent of Hobbs v. Hobbs, 10th Dist. No. 91AP-1478 (June 11, 1992); Kelly v. Nelson, 

10th Dist. No. 92AP-1014 (Dec. 29, 1992); and In re Wood, 10th Dist. No. 97APE01-77 

(Aug. 12, 1997). We began our analysis with a review of the facts and holdings of Hobbs

and Kelly. In Hobbs, we affirmed a judgment setting aside a dissolution where the husband 

failed to disclose ownership of 50 percent of nonvoting stock in 5 companies. McLoughlin

at ¶ 26. In Kelly, we found the trial court did not err in granting relief from judgment under 

Civ.R. 60(B)(5) where the husband omitted the insurance agency he owned from the 

parties' separation agreement. McLoughlin at ¶ 27. After summarizing those two cases in 

McLoughlin, we concluded that in Hobbs and Kelly, we had "affirmed the trial courts' 

decisions to vacate based on one party's complete failure to identify an asset in [an] affidavit 

and [separation] agreement, thus vitiating the concept of mutuality underlying 

dissolution." McLoughlin at ¶ 29. 

{¶ 33} Our analysis of Wood, however, required consideration of a complicating 

factor. In Wood, we had stated, "[f]ull disclosure in dissolution proceedings means 

disclosure of all assets, as well as disclosure of the value of the assets." (Emphasis added.) 

In McLoughlin, we considered that statement in the context of the facts of Wood. There, 

the asset at issue was the husband's retirement account. The husband had done nothing 

more than answer "yes" on his Loc.R. 17 form, indicating only that he had retirement assets. 

No further information was provided, such as the type of retirement account(s) or the name 
No. 19AP-832 10

of the institution servicing the account(s), from which the value of the account(s) could be 

determined. McLoughlin at ¶ 30. The wife, consequently, could not ascertain the value of 

the assets disclosed. Id. Thus, in Wood, although the husband had acknowledged the 

existence of his assets, he had not provided enough identifying information regarding the 

assets for any sort of valuation. Id. The "yes" answer, therefore, was tantamount to an 

omission of the assets altogether. 

{¶ 34} Given these facts, we determined in McLoughlin that Wood did not create an 

additional requirement that spouses must disclose the value of each asset named in a Loc.R. 

17 affidavit or separation agreement. McLoughlin at ¶ 30. Rather, we held, Wood "stands 

in line with the holdings of Hobbs and Kelly: when an asset is completely omitted from the 

agreement, a party may be entitled to relief from judgment under Loc.R. 17 and Civ.R. 

60(B)(5)." McLoughlin at ¶ 30. 

{¶ 35} Based on our holding in McLoughlin, we conclude that the failure to 

determine and report the value of A.M.'s shares of Capital City Mechanical stock does not 

justify setting aside the dissolution under Civ.R. 60(B)(5). Only the complete omission of 

an asset from a Loc.R. 17 affidavit or separation agreement may render a dissolution 

vulnerable to a Civ.R. 60(B)(5) motion.3 

{¶ 36} Finally, we must address the trial court's contention that real property and 

subsidiaries owned by Capital City Mechanical are missing from the separation agreement. 

Because the assets at issue are owned by Capital City Mechanical—an independent 

corporate entity—they are not A.M.'s or J.M.'s property. As property not belonging to either 

A.M. or J.M., those assets did not need to be allocated in the settlement agreement. 

Consequently, the omission of these assets from the separation agreement is not a ground 

for relief from judgment under Civ.R. 60(B)(5).

{¶ 37} Next, we turn to the trial court's second ground for granting J.M. relief from 

judgment: the parties failed to immediately separate after entering into the separation 

agreement on June 24, 2016. We conclude that the trial court erred in granting J.M. relief 

from judgment on that ground.

3 Even if the moving party establishes the omission of an asset, a trial court may decide to deny relief from 

judgment. McLoughlin at ¶ 31. In such circumstances, a trial court must exercise its discretion to determine 

whether equity demands that the dissolution be set aside. Id.
No. 19AP-832 11

{¶ 38} Pursuant to R.C. 3103.06, "[a] husband and wife cannot, by any contract with 

each other, alter their legal relations, except that they may agree to an immediate separation 

and make provisions for the support of either of them and their children during the 

separation." Thus, for a valid separation agreement to exist, the spouses must agree in the 

separation agreement to an immediate separation. Kauffman v. Kauffman, 10th Dist. No. 

92AP-28 (Aug. 20, 1992). Here, in the separation agreement, "[e]ach of the parties agree[d] 

to live separately and apart from the other." (Property Settlement and Separation 

Agreement, Art. I, Sec. 1.) However, according to J.M., the parties breached that provision, 

and she sought to set aside the dissolution on that basis. 

{¶ 39} We cannot correlate that basis for relief with any Civ.R. 60(B)(1) through (4) 

ground, so we presume that J.M. invoked Civ.R. 60(B)(5), the "catch-all" provision, as the 

applicable ground. Civ.R. 60(B)(5) "reflect[s] the inherent power of a court to relieve a 

person from the unjust operation of a judgment." Caruso-Ciresi, Inc. v. Lohman, 5 Ohio 

St.3d 64 (1983), paragraph one of the syllabus. Courts only grant relief under Civ.R. 

60(B)(5) in those extraordinary and unusual cases where the moving party demonstrates 

substantial reason warranting relief from judgment. Id. at paragraph two of the syllabus; 

Luke v. Roubanes, 10th Dist. No. 16AP-766, 2018-Ohio-1065, ¶ 22; Howard v. Howard, 

10th Dist. No. 14AP-292, 2014-Ohio-5248, ¶ 14.

{¶ 40} In the case at bar, J.M. fails to explain why cohabitation after the execution 

of a separation agreement should qualify as a reason for relief from judgment under Civ.R. 

60(B)(5). We recognize that the parties' cohabitation breached the separation agreement, 

giving J.M. a meritorious defense. However, to constitute a Civ.R. 60(B)(5) ground to set 

aside a final judgment dissolving a marriage, the reason for relief must be substantial. 

Cohabitation does not vitiate the parties' consent to the separation agreement, but rather, 

constitutes a breach of the terms of the separation agreement. Because cohabitation does 

not affect the existence of mutual consent, "the cornerstone of [ ] dissolution law,"4 we do 

not find cohabitation so substantially problematic that it constitutes a ground on which a 

court may set aside a dissolution of a marriage.

4 Knapp, 24 Ohio St.3d at 144.
No. 19AP-832 12

{¶ 41} The trial court's third reason for granting J.M. relief from judgment was 

J.M.'s mental incapacity. We conclude that the trial court erred in granting J.M. relief from 

judgment for that reason.

{¶ 42} Parties entering into a contract must be competent to consent to the terms of 

that contract. Davis v. Marshall, 10th Dist. No. 94APE02-158 (Aug. 9, 1994). "Where there 

is no capacity to understand these terms, there can be no contract." Id. Consequently, a 

court may set aside a dissolution under Civ.R. 60(B)(5) if the moving party was mentally 

incompetent when he or she entered into a separation agreement incorporated into a 

dissolution decree. Di Pietro v. Di Pietro, 10 Ohio App.3d 44, 45-46 (10th Dist.1983). 

{¶ 43} The test for ascertaining mental competency is whether the person claiming 

incompetency to contract understood the nature of the transaction and the effects of his or 

her own actions. Miller v. Miller, 7th Dist. No. 05 MA 111, 2006-Ohio-1288, ¶ 11; In re 

Wood, 10th Dist. No. 97APE01-77 (Aug. 12, 1997); Davis. "To avoid a contract on grounds 

of incompetence, 'there must be such weakness or derangement of mental powers as to 

make the person wholly unable to enter into business transactions which would require him 

to look after his own interests and deal on equal terms with persons of ordinary intellectual 

vigor.' " Pakeeree v. Pakeeree, 9th Dist. C.A. No. 15186 (Mar. 11, 1992), quoting 55 Ohio 

Jurisprudence 3d, Incompetent Persons, Section 144, at 586-87 (1984).

{¶ 44} In the case at bar, the trial court found that J.M. misunderstood the nature 

and quality of the separation agreement when she signed it. The trial court determined that 

J.M. did not realize she was executing a separation agreement; instead, J.M. believed she 

was signing a generic financial agreement. The evidence, however, does not support this 

factual finding. J.M. testified that, initially, she thought she and A.M. were negotiating a 

financial agreement so A.M. could concentrate on working on their marriage. But, upon 

seeing the separation agreement on June 24, 2016—the day she signed it—J.M. realized 

that it was a separation agreement. Indeed, that realization caused her to cry throughout 

the meeting. Additionally, when returning to her table after visiting the restroom, J.M. told 

her friend, P.C., that she was at Memories to get matters "straightened out" for her divorce 

from A.M. (Tr. at 10.) This evidence demonstrates that when J.M. signed the separation 

agreement, she understood the nature of the transaction she was entering and the effects 
No. 19AP-832 13

of her actions. Given J.M.'s understanding, her fragile state of mind did not render her 

mentally incompetent to contract.

{¶ 45} In addition to finding that J.M. lacked the capacity to execute the separation 

agreement, the trial court also found that J.M. lacked the capacity to execute the 

dissolution. Pursuant to R.C. 3105.65(B), "[i]f, upon review of the testimony of both 

spouses * * *, the court approves the separation agreement and any amendments to it 

agreed upon by the parties, it shall grant a decree of dissolution of marriage that 

incorporates the separation agreement." Consequently, spouses do not execute 

dissolutions like they execute contracts; rather, courts issue judgments granting 

dissolutions. 

{¶ 46} Nevertheless, before a court grants a dissolution, both spouses must "appear 

before the court, and each spouse shall acknowledge under oath that that spouse voluntarily 

entered into the separation agreement appended to the petition, that that spouse is satisfied 

with its terms, and that that spouse seeks dissolution of the marriage." R.C. 3105.64(A). 

Thus, the spouses' consent to the dissolution is a necessary prerequisite for the issuance of 

a decree of dissolution, just like consent is a necessary prerequisite for the formation of a 

contract. Therefore, by finding that J.M. lacked the capacity to execute the dissolution, the 

trial court was determining that J.M. lacked the capacity to express her consent to the 

dissolution by testifying under oath to the R.C. 3105.64(A) acknowledgements. 

{¶ 47} Our research has uncovered no prior precedent where a court has granted 

relief from judgment on the ground that a spouse lacked competency to make the 

acknowledgments required under R.C. 3105.64(A). This ground does not fit within any of 

the Civ.R. 60(B)(1) through (4) grounds for relief from judgment. As we stated above, 

courts only grant relief under Civ.R. 60(B)(5) in those extraordinary and unusual cases 

where the moving party demonstrates substantial reason warranting relief from judgment. 

Caruso-Ciresi, 5 Ohio St.3d 64, at paragraph two of the syllabus; Luke, 10th Dist. No. 16AP766, 2018-Ohio-1065, at ¶ 22; Howard, 10th Dist. No. 14AP-292, 2014-Ohio-5248, at ¶ 14.

{¶ 48} The R.C. 3105.64(A) acknowledgements ensure each spouse consents to the 

dissolution and separation agreement. Again, as we have repeatedly stated, "mutual 

consent is the cornerstone of [ ] dissolution law." Knapp, 24 Ohio St.3d at 144. Based on 

the importance of each spouse's consent in dissolution proceedings, we conclude that a 
No. 19AP-832 14

spouse's incompetency to testify to the R.C. 3105.64(A) acknowledgements constitutes a 

ground for relief from judgment under Civ.R. 60(B)(5).

{¶ 49} Under former Evid.R. 601(A), "[e]very person is competent to be a witness 

except * * * [t]hose of unsound mind * * * who appear incapable of receiving just 

impressions of the facts and transactions respecting which they are examined, or of relating 

them truly."5 Thus, a person of unsound mind may be competent to testify. " 'A person, 

who is able to correctly state matters which have come within his perception with respect 

to the issues involved and appreciates and understands the nature and obligation of an 

oath, is a competent witness notwithstanding some unsoundness of mind.' " State v. 

Bradley, 42 Ohio St.3d 136, 140-41 (1989), quoting State v. Wildman, 145 Ohio St. 379 

(1945), paragraph three of the syllabus.

{¶ 50} Here, J.M. presented evidence that she was experiencing great emotional 

turmoil at the time of the dissolution hearing. She also drank two large glasses of wine prior 

to the hearing. The question, therefore, is whether those two factors so impaired her mental 

acuity that she could not correctly answer when asked whether she had voluntarily entered 

into the separation agreement, she was satisfied with the terms of the agreement, and she 

sought dissolution of her marriage. 

{¶ 51} J.M. did not testify that she was so mentally incapacitated that she could not 

understand the questions asked of her and respond intelligibly and truthfully during the 

dissolution hearing. Obviously, the trial judge overseeing the dissolution hearing perceived 

nothing in J.M.'s demeanor or responses to make him question her competency because he 

allowed her to testify and relied on her testimony in making his judgment. This is 

consistent with the testimony of Miller and A.M., who did not observe any indication that 

J.M. was mentally impaired.

{¶ 52} Even the trial court, in deciding the Civ.R. 60(B) motion, did not find that 

J.M.'s mental state prevented her from testifying accurately during the dissolution hearing. 

The trial court, instead, found that J.M. may not have understood that a dissolution hearing 

was occurring due to its short, informal nature, and therefore, J.M. may have been unable 

to assert her rights. This finding rests completely on speculation. J.M. did not testify that 

5 We quote and apply the version of Evid.R. 601 in effect when J.M. testified at the November 17, 2016 

dissolution hearing.
No. 19AP-832 15

she mistook the dissolution hearing for any other proceeding. Moreover, the point of the

R.C. 3105.64(A) acknowledgements is to give both spouses the opportunity to object to the 

separation agreement and dissolution. Although the record contains no transcript of the 

parties' dissolution hearing, we know J.M. made each acknowledgement because those 

acknowledgements are memorialized in the dissolution decree. The decree states that the 

parties testified during the November 17, 2016 hearing that they "voluntarily entered into 

the Separation Agreement and agreed to the terms contained therein and each Petitioner is 

satisfied with the terms thereof[,] [and] that each Petitioner voluntarily sought dissolution 

of their marriage and desires to have their marriage dissolved." (Nov. 18, 2016 Decree of 

Dissolution of Marriage.) Thus, J.M. had the chance to voice her dissatisfaction with the 

separation agreement and the dissolution, but chose to endorse both.

{¶ 53} In sum, we conclude that the trial court erred in granting J.M. relief from 

judgment on the ground that she was mentally incompetent pursuant to Civ.R. 60(B)(5).

{¶ 54} Although J.M. did not raise any other Civ.R. 60(B) ground for relief, the trial 

court also granted J.M. relief from judgment on the basis of duress. We conclude that the 

trial court erred in doing so.

{¶ 55} A separation agreement that is the product of duress is unenforceable. 

Quebodeaux v. Quebodeaux, 102 Ohio App.3d 502, 505 (9th Dist.1995); Young v. Young, 

8 Ohio App.3d 52, 54 (10th Dist.1982). Duress is a ground for relief from judgment under 

Civ.R. 60(B)(3), which includes the "[m]isconduct of an adverse party." Jackson v. 

Hendrickson, 2d Dist. No. 21921, 2008-Ohio-491, ¶ 64.

{¶ 56} Under the law of duress, a party may avoid a contract induced by physical 

compulsion or improper threat. Blodgett v. Blodgett, 49 Ohio St.3d 243, 245-46 (1990); 1 

Restatement of the Law 2d, Contracts, Section 174-76 (1981). To establish a contract is void 

as the product of duress, a complaining party must prove that: (1) it involuntarily accepted 

the terms of another, (2) the circumstances permitted no other alternative, and (3) the 

circumstances were the result of coercive acts of the opposing party. Blodgett at 246. For 

duress to occur, the complaining party's assent to the contract must result from the 

opposing party's conduct, not the complaining party's necessities. Id. Courts seek to 

determine whether the opposing party's physical compulsion or improper threats "have 

overcome the will" of the complaining party and "have created a state of mind such that 
No. 19AP-832 16

[the complaining party] was induced to do an act which he would not otherwise have done 

and which he was not bound to do." Tallmadge v. Robinson, 158 Ohio St. 333, 340 (1952).

{¶ 57} In the case at bar, J.M. never explicitly stated why she signed the separation 

agreement. J.M. did testify repeatedly that she wanted to save her marriage, and we 

presume that that desire motivated her execution of the separation agreement. A.M., 

however, never threatened to end their marriage (or anything else) in order to convince 

J.M. to enter into the separation agreement. Rather, according to J.M., A.M. promised to 

give her what she wanted—his willingness to work on their marriage—if she agreed to give 

him what he wanted—a signed separation agreement. Additionally, A.M. did not force J.M. 

to involuntarily accept a list of contractual terms. The parties instead negotiated the terms 

of the separation agreement. 

{¶ 58} It appears the trial court found that J.M. executed the separation agreement 

under duress due to the multiple stressors in her life, including A.M.'s affair, A.M.'s "sexual 

demands," the demands of caring for family members, and her daily responsibilities. 

Initially, we must address the vague reference to A.M.'s "sexual demands." While A.M. 

admitted to an affair, J.M. did not testify that A.M. made any sexual demands of her. 

Instead, J.M. stated that A.M. "requested" an open relationship. (Tr. at 55.) J.M. testified 

to initiating the relationship with J.F. herself, not at A.M.'s demand. More importantly, 

J.M. never claimed that A.M. threatened her regarding any aspect of their intimate 

relationships in order to coerce her to sign the separation agreement.

{¶ 59} Moreover, to the extent that J.M. had stressors in her life, they are irrelevant. 

As we stated above, duress must result from the opposing party's physical compulsion or 

improper threats. Duress does not occur if the stress and pressure of J.M.'s chaotic life

drove her to sign the separation agreement. 

{¶ 60} Finally, the trial court found it problematic that A.M. arranged the final 

meeting, during which he and J.M. signed the separation agreement, to occur at an 

establishment that served alcohol. However, again, to prove duress, J.M. must show that 

A.M. coerced her into consenting to the separation agreement by physical compulsion or 

improper threats. In the absence of evidence of such coercion, whether J.M. had alcohol to 

drink is irrelevant.
No. 19AP-832 17

{¶ 61} On appeal, J.M. does not defend the trial court's decision to grant relief from 

judgment on the basis of duress. J.M., instead, argues that the facts support a finding that 

A.M. exercised undue influence over her. Like duress, undue influence is a ground for relief 

from judgment under Civ.R. 60(B)(3). Lewis, 10th Dist. No. 09AP-594, 2010-Ohio-1072, 

at ¶ 11.

{¶ 62} J.M., however, did not argue for relief from judgment based on undue 

influence in the trial court. Generally, a party waives the right to appeal an issue that the 

party could have, but did not, raise before the trial court. Niskanen v. Giant Eagle, Inc., 

122 Ohio St.3d 486, 2009-Ohio-3626, ¶ 34. Here, where J.M. did not argue and the trial 

court did not find that A.M. exerted undue influence over J.M., we will not consider that 

ground as a reason for granting J.M. relief from judgment.

{¶ 63} In the end, we reject each of the grounds on which the trial court granted J.M. 

relief from judgment. Because J.M. has not established any Civ.R. 60(B) ground entitling 

her to relief from judgment, the trial court erred in granting her motion. Accordingly, we 

sustain A.M.'s sole assignment of error. 

{¶ 64} For the foregoing reasons, we sustain A.M.'s assignment of error, and we 

reverse the judgment of the Franklin County Court of Common Pleas, Division of Domestic 

Relations.

Judgment reversed.

SADLER and JAMISON, JJ., concur.