[Cite as Carnes v. Carnes, 2015-Ohio-2925.] 

Appeal From: Hamilton County Court of Common Pleas, Domestic Relations 

Division 

 

Judgment Appealed from is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: July 22, 2015 

Phillips Law Firm, Inc., and Alfred Wm. Schneble III, for Plaintiff-Appellant, 

O’Connor Mikita & Davidson LLC and Michael J. O’Connor, for Defendant-Appellee. 

Please note: this case has been removed from the accelerated calendar. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

MOLLY K. CARNES,

 Plaintiff-Appellant, 

 vs. 

FRANK CARNES, JR., 

 Defendant-Appellee. 

 

:

: 

: 

: 

: 

APPEAL NO. C-140520 

TRIAL NO. DR-1400169 

 

 O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

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CUNNINGHAM, Presiding Judge. 

{¶1} Plaintiff-appellant Molly K. Carnes appeals from the judgment of the 

Hamilton County Court of Common Pleas, Domestic Relations Division, denying her 

Civ.R. 60(B) motion to set aside the divorce decree that terminated her “marriage” to 

defendant-appellee Frank Carnes, Jr. Molly moved to set aside the decree several 

months after the divorce had become final, claiming that the marriage was void 

because information she had subsequently discovered demonstrated that Frank had 

a wife at the time of the marriage. For the reasons that follow, we reverse the trial 

court’s judgment, set aside the decree of divorce, and remand the cause for further 

proceedings. 

I. Background Facts and Procedure 

{¶2} The parties married in November 2004 and had no children. In 

January 2014, Molly filed a complaint for divorce under R.C. 3105.01(K), on the 

ground of incompatibility. She submitted with her complaint a marital settlement 

and separation agreement (“separation agreement”), which was signed by both 

parties, divided the marital property and obligations, and contained a clause that 

precluded the separation agreement’s merger into a contemplated decree of divorce. 

The settlement agreement, in part, required Molly to pay Frank $15,000 for his 

portion of the marital equity in the marital residence and to transfer to Frank an IRA 

retirement account. 

{¶3} Frank consented to Molly’s request for the divorce. On April 1, 2014, 

the trial court granted the divorce and adopted and incorporated the parties’ 

separation agreement into the decree of divorce. 
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{¶4} On June 16, 2014, Molly moved to vacate the divorce decree. She 

contended that her marriage to Frank was void because Frank had a spouse named 

Tricia Jean Green at the time of the marriage, and that she should have the 

opportunity to terminate her marriage on the basis of this newly discovered bigamy. 

She also claimed that Frank had defrauded her, and that she had timely moved for 

relief from the judgment. The trial court held a hearing to verify Molly’s facts before 

ruling on her motion. 

{¶5} At the hearing, Molly testified that an unusual posting by Tricia on 

Frank’s son’s Facebook page that she had observed two weeks after the finalization of 

the divorce compelled her to view Tricia’s Facebook page. There Molly had observed 

posts in which Tricia indicated that she had married Frank in 1996 in Dearborn 

County, Indiana, and that she remained his wife. Molly undertook an expansive 

search of public records and confirmed Frank’s and Tricia’s marriage in 1996, but 

she was unable to find any documentation of the termination of Frank’s and Tricia’s 

marriage. 

{¶6} Molly introduced several exhibits at the hearing, including the 

marriage certificate of Frank and Tricia issued in Dearborn County, Indiana, 

printouts of several Facebook pages containing Tricia’s mention of her marriage to 

Frank, and Molly’s and Frank’s marriage license application in which Frank had 

indicated that he had not been previously married. 

{¶7} In opposing Molly’s motion, Frank testified that he and Tricia had 

married in Dearborn County, Indiana, in 1996, while he was incarcerated in the 

Dearborn County Justice Center, but that he believed that the marriage had been 

“overturned.” His belief was based on a note requesting the dissolution that he had 

submitted to a police officer at the jail one week after his marriage to Tricia. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Although Frank recalled that the note had been returned to him marked “granted,” 

he conceded that he no longer had the document and that Dearborn County had no 

record of it or any other record of the purported termination of the marriage. 

{¶8} Importantly, contrary to Molly’s testimony, Frank claimed that Molly 

had known about his marriage to Tricia and the purported dissolution. Ultimately, 

though, he claimed to be just as surprised as Molly to learn that Dearborn County did 

not have any record of his dissolution. 

{¶9} Frank urged the court to deny Molly’s motion, even though he 

conceded that Molly had demonstrated her ability to present a legitimate defense if 

relief were granted. The trial court apparently adopted Frank’s position and denied 

the motion to set aside the divorce decree. Molly now appeals, assigning as error the 

trial court’s “fail[ure] to set aside the divorce decree.” 

II. Analysis 

{¶10} We review the trial court’s denial of the Civ.R. 60(B) motion under an 

abuse-of-discretion standard. Strack v. Pelton, 70 Ohio St.3d 172, 174, 637 N.E.2d 

914 (1994); Scheper v. McKinnon, 177 Ohio App.3d 820, 2008-Ohio-3964, 896 

N.E.2d 208, ¶ 8 (1st Dist.). Therefore, the trial court’s decision will not be reversed 

unless it is arbitrary, unconscionable, or unreasonable. Scheper at ¶ 8. “An 

unreasonable decision is one that no sound reasoning process supports.” Bank of 

N.Y. Mellon v. Martin, 1st Dist. Hamilton No. C-140314, 2015-Ohio-2531, ¶ 26. 

{¶11} Civ.R. 60(B) states in part: 

On motion and upon such terms as are just, the court 

may relieve a party or his legal representative from a 

final judgment * * * for the following reasons: (1) 

mistake, inadvertence, surprise or excusable neglect; (2) 
OHIO FIRST DISTRICT COURT OF APPEALS

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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. 

{¶12} To prevail on her motion under Civ.R. 60(B), Molly was required to 

demonstrate that she has a meritorious defense or claim to present if relief is 

granted; that she is entitled to relief under one of the grounds set forth in Civ.R. 

60(B)(1)-(5); and that she made the motion within a reasonable time, and where the 

grounds of relief are found in Civ.R. 60(B)(1), (2), or (3), not more than one year 

after the judgment of the court granting the divorce decree. See GTE Automatic 

Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), 

paragraph two of the syllabus. 

{¶13} Civ.R. 60(B) was adopted to provide an exception to the “finality of 

judgment rule,” and allows for relief from judgment under the proper circumstances 

when it is in the “interest of fairness and justice.” Adomeit v. Baltimore, 39 Ohio 

App.2d 97, 101, 316 N.E.2d 469 (8th Dist.1974). We must “liberally construe” this 

“remedial rule.” Blasco v. Mislik, 69 Ohio St.2d 684, 685, 433 N.E.2d 612 (1982). 
OHIO FIRST DISTRICT COURT OF APPEALS

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A. Meritorious Claim to Present 

{¶14} The first issue we review is whether Molly sufficiently demonstrated 

that she has a meritorious claim to present if relief is granted. Molly argues in part 

that if the decree of divorce is set aside, she has a meritorious claim to present, in 

that she is entitled to a divorce or annulment on the ground that Frank had a living 

spouse at the time of the marriage. We agree. 

{¶15} In Ohio, a marriage is presumed to continue until the death of a 

spouse or the entry of a court decree dissolving the marriage. Indus. Comm. v. Dell, 

104 Ohio St. 389, 401, 135 N.E. 669 (1922). Where two marriages have been 

“solemnized” and the record is silent as to whether there has been a divorce of the 

parties to the first marriage, there is a presumption that the status of the parties to 

the first marriage continues. Id. at paragraph three of the syllabus, cited in Kaur v. 

Bharmota, 182 Ohio App.3d 696, 2009-Ohio-2344, 914 N.E.2d 1087, ¶ 8 (10th 

Dist.). The burden is on the party claiming the validity of the second marriage to 

overcome the presumption. Id. If that presumption is not overcome, the second 

marriage is determined to be bigamous and void. See Evans v. Indus. Comm., 166 

Ohio St. 413, 414, 143 N.E.2d 705 (1957); Dibble v. Dibble, 88 Ohio App. 490, 511, 

100 N.E.2d 451 (5th Dist.1950). 

{¶16} Although a bigamous marriage is void, Darling v. Darling, 44 Ohio 

App.2d 5, 7, 335 N.E.2d 708 (8th Dist.1975), the domestic-relations statutes allow for 

a divorce. See Eggleston v. Eggleston, 156 Ohio St. 422, 103 N.E.2d 395 (1952) 

(interpreting similar predecessor law under the General Code), cited in Bubsey v. 

Oleyar, 8th Dist. Cuyahoga Nos. 76226 and 76267, 2000 Ohio App. LEXIS 2255 

(May 25, 2000). Where a divorce is sought in this situation, the party seeking the 

divorce must proceed on the ground that the other party had a husband or wife at the 
OHIO FIRST DISTRICT COURT OF APPEALS

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time of the marriage, as provided in R.C. 3105.01(A). See Bubsey, citing Eggleston at 

paragraph one of the syllabus. A party in that situation may alternatively seek an 

annulment on the same grounds. See R.C. 3105.31(B). 

{¶17} Thus, Molly met the first prong of the Civ.R. 60(B) test as she 

demonstrated that she has a meritorious claim to present if relief is granted—the 

ground for divorce set forth in R.C. 3105.01(A) or the ground for an annulment set 

forth in R.C. 3105.31(B). 

B. Ground for Relief 

{¶18} The next issue is whether Molly stated one of the grounds for relief 

under Civ.R. 60(B). Molly argues that relief was most appropriate on the basis of 

newly discovered evidence, in accordance with Civ.R. 60(B)(2). But we disagree that 

Civ.R. 60(B)(2) was the operable provision. 

{¶19} To qualify as newly discovered evidence as contemplated under Civ.R. 

60(B)(2), the new evidence must not have been discoverable by due diligence within 

the time limits set forth for a motion for a new trial. See Cuyahoga Support 

Enforcement Agency v. Guthrie, 84 Ohio St.3d 437, 442, 705 N.E.2d 318 (1999); 

Smith v. Smith, 8th Dist. Cuyahoga No. 83275, 2004-Ohio-5589, ¶ 16. Here, the 

evidence of the bigamy was available when Molly filed for divorce. And with due 

diligence, she could have discovered the bigamy in time to move for a new trial under 

Civ.R. 59(B). 

{¶20} But Molly never looked, because Frank’s marital status at the time of 

his marriage to Molly was not an issue in the divorce proceedings. According to the 

testimony, both parties believed that their marriage was valid; Molly filed for divorce 

on the ground of incompatibility, as set forth in R.C. 3105.01(K), and Frank did not 

challenge that basis. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶21} Although Molly cannot be afforded relief under Civ.R. 60(B)(2), the 

operative facts that she presented in support of her motion satisfied the condition of 

“mistake” as contemplated by Civ.R. 60(B)(1). She demonstrated that she filed for 

divorce under R.C. 3105.01(K) under the misconception that she was legitimately 

married to Frank. 

{¶22} While Molly did not refer to Civ.R. 60 (B)(1) or use the term “mistake” 

when presenting this issue in the trial court proceedings and in her argument on 

appeal, this issue was necessarily a subpart of her motion to vacate based on her 

recent discovery of the bigamy. Thus, the evidentiary basis for this issue was 

adduced before the trial court, Frank had the opportunity to challenge it, and this 

court may address it, even if Molly did not articulate it as such, unless we put form 

over substance, in contradiction to the remedial purpose of Civ.R. 60(B). See C. 

Miller Chevrolet, Inc. v. Willoughby Hills, 38 Ohio St.2d 298, 301, 313 N.E.2d 400 

(1974) (“[I]t is evident from the discretionary language employed in App.R. 12(A) 

that a court of appeals may pass upon an error which was neither assigned nor 

briefed by a party.”); State v. Peagler, 76 Ohio St.3d 496, 668 N.E.2d 489 (1996), 

syllabus (“While an appellate court may decide an issue on grounds different from 

those determined by the trial court, the evidentiary basis upon which the court of 

appeals decides a legal issue must have been adduced before the trial court and made 

a part of the record thereof.”). 

{¶23} Frank merely argues now, as he did in the trial court, that there is 

conflicting evidence concerning when Molly learned of his marriage to Tricia and 

whether his marriage to Tricia was ever terminated. But this first identified conflict, 

as explained below, is irrelevant to our analysis because there is no conflict in the 

evidence with respect to the fact that Molly learned of the bigamy after the divorce. 
OHIO FIRST DISTRICT COURT OF APPEALS

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The second identified conflict is not a conflict—Frank failed to overcome the 

presumption that his marriage to Tricia continued. See Dell, 104 Ohio St. 389, 135 

N.E. 669, at paragraph three of the syllabus; Evans, 166 Ohio St. at 414, 143 N.E.2d 

705. 

{¶24} The trial court, in ruling on Molly’s motion to vacate the divorce 

decree, appeared to focus solely on Molly’s contention that she only recently had 

discovered that Frank and Tricia had married. While the court found that claim 

dubious, the court failed to consider that the evidence only showed that at the time of 

Molly’s and Frank’s divorce, both Molly and Frank had believed that their marriage 

was valid and not void due to the purported bigamy. This evidence established that 

the mistake was a mutual mistake of a material fact and, thus, a ground to vacate the 

decree of divorce. See Smith, 8th Dist. Cuyahoga No. 83275, 2004-Ohio-5589, at 

¶ 17. 

C. Timeliness of the Motion 

{¶25} The final issue is whether Molly’s motion was timely filed. Under the 

rule, the motion must be made within a reasonable time, and where the 

circumstances presented fall under Civ.R. 60(B)(1), no later than one year. 

{¶26} In this case, Frank has never challenged the timeliness of the motion, 

and the trial court did not expressly address this issue. But the record demonstrates 

that Molly filed the motion to vacate less than three months after the issuance of the 

divorce decree, after undertaking an exhaustive search of the public records to 

substantiate Tricia’s claim that she remained married to Frank. We determine under 

these facts that the motion was timely filed. 
OHIO FIRST DISTRICT COURT OF APPEALS

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D. Abuse of Discretion 

{¶27} Considering this record, we conclude that the trial court abused its 

discretion when it denied Molly’s motion to set aside the divorce decree, as the 

court’s decision cannot be supported by any sound reasoning process. Although a 

claim under Civ.R. 60(B) requires a careful balancing of the two “conflicting 

principles of finality and perfection,” Guthrie, 84 Ohio St.3d at 441, 705 N.E.2d 318, 

this case does not involve a determination that makes finality most compelling, such 

as parentage, visitation, or support of a minor. See Strack, 70 Ohio St.3d 172, 637 

N.E.2d 914. While there is a compelling need for finality in the termination of 

marriages, see In re Whitman, 81 Ohio St.3d 239, 243-243, 690 N.E.2d 535 (1998), 

there is nothing in the record to suggest that either Molly or Frank has remarried 

since the entry of the divorce decree. 

{¶28} Molly’s motivation for moving to vacate is a factor to be considered 

also in determining whether she may obtain that relief. See id. at 243. Frank argues 

that she was motivated by a desire to avoid her financial obligations to him under the 

separation agreement. But that separation agreement, by its own terms, is a contract 

that did not merge into the decree of divorce. Therefore, Molly’s desire to avoid 

those obligations should have been afforded little weight in determining whether the 

decree that misrepresents the legal relationship between the parties should be set 

aside. 

{¶29} The court has an important interest in correcting the record, and 

Civ.R. 60(B) should be used when it is equitable to do so. See Tom Sweeney, Inc. v. 

Porter, 1st Dist. Hamilton No. C-980337, 1999 Ohio App. LEXIS 1914 (Apr. 30, 

1999). Thus, we sustain the assignment of error. 
OHIO FIRST DISTRICT COURT OF APPEALS

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III. Conclusion 

{¶30} Because Molly established that the parties were mistaken as to the 

validity of their marriage, that she should have proceeded under a different statutory 

provision in terminating her marriage, and that she timely filed her Civ.R. 60(B) 

motion, she was entitled to relief from judgment. Accordingly, we reverse the trial 

court’s judgment denying Molly’s Civ.R. 60(B) motion, vacate the divorce decree, 

and remand this cause for further proceedings consistent with the law and this 

opinion. 

Judgment reversed and cause remanded. 

MOCK, J., concurs 

DEWINE, J. dissents. 

DEWINE, J., dissenting. 

{¶31} I must respectfully dissent. The majority in this case exceeds the 

appropriate limits of appellate review by choosing to upset a final judgment on a 

ground that was not raised below and that finds only tenuous support in the record. 

{¶32} A tenet of our system of review is the idea that appellate courts should 

not ordinarily pass on issues not raised in the trial court. We don’t impose this rule 

to be pedantic or mean-spirited; rather, we adhere to it because it advances not only 

the orderly administration of justice but also the interests of fundamental fairness. 

In the words of the Supreme Court, “[f]airness, which is required for the operation of 

the adversary system of justice, requires at least that the parties be allowed in the 

trial court to present evidence that would support or refute the legal theory 

addressed by the court of appeals.” Peagler, 76 Ohio St.3d at 499, 668 N.E.2d 489. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶33} The majority grants relief under Civ.R. 60(B)(1), which allows for relief 

from judgment for mutual “mistake.” In the trial court, Molly sought relief under 

Civ.R. 60(B)(3) for fraud. She also made passing reference to “newly discovered 

evidence,” a basis for relief under Civ.R. 60(B)(2). Nowhere was any mention made 

of “mistake” as a basis for relief. Frank’s attorney, we may presume, tailored the 

evidence presented to the legal arguments raised. We have no way of knowing if he 

would have presented anything different had the issue been one of mutual mistake. 

Thus, it seems fundamentally unfair for the majority to decree that the judgment be 

reopened for a mutual mistake when that argument was not raised below. 

{¶34} Not only was mistake not presented below, it was not raised here 

either. The sole issue presented for review was that Molly was entitled to relief 

based on newly discovered evidence under Civ.R. 60(B)(2). We should be hesitant 

to reverse the judgment of a trial court for a reason not even raised by the parties in 

their briefs. 

{¶35} The evidence that the majority bases its decision on is not all that 

strong, either. In order to find mutual mistake, it had to credit Frank’s rather 

incredulous story that he engaged in a sham marriage, which he believed was 

annulled because of some note he received from prison officials that he had in his 

possession a few years ago but has now lost. It had to discount the evidence 

introduced from Tricia’s Facebook posts that made the marriage seem like much 

more than was represented by Frank. And the court had to create its own view of 

Molly’s testimony. At trial, she testified she knew nothing about Frank’s marriage to 

Tricia. The trial court didn’t believe her, concluding that her “testimony concerning 

her 10-year marriage to Husband and her knowledge, or lack thereof, concerning 

Husband’s prior wife (wives) did not suffice to convince the Court.” But the majority 
OHIO FIRST DISTRICT COURT OF APPEALS

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nonetheless concludes “that the evidence only showed that at the time of the divorce, 

both Molly and Frank had believed their marriage was valid and not void due to the 

purported bigamy.” 

{¶36} This view of the evidence seems a stretch, at best. While there was no 

evidence presented at the hearing directly contradicting the unadvanced mutual 

mistake theory, the evidence in support was extremely weak. It hardly seems the 

type of evidence an appellate court should rely upon in reversing a trial court’s 

decision and disturbing a final judgment. 

{¶37} A court abuses its discretion when its “attitude is unreasonable, 

arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 

N.E.2d 1140 (1983). Finding nothing of the kind in the trial court’s decision, I 

dissent. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.