[Cite as LaCourse v. LaCourse, 2023-Ohio-972.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

LUCAS COUNTY

Tonya LaCourse Court of Appeals No. L-22-1092

Appellee Trial Court No. DR0201900647

 

v.

John LaCourse DECISION AND JUDGMENT

Appellant Decided: March 24, 2023

* * * * *

Martin E. Mohler, for appellee.

Jeremy W. Levy and Brianna L. Stephan, for appellant.

* * * * *

ZMUDA, J.

I. Introduction

{¶ 1} Appellant, John LaCourse, appeals the March 15, 2022 judgment of the 

Lucas County Court of Common Pleas, Domestic Relations Division, denying his motion 

to vacate the February 16, 2022 consent judgment entry that amended the terms of the 

parties’ previously-granted divorce decree. For the following reasons, we affirm the trial 

court’s judgment. 
2.

A. Facts and Procedural Background

{¶ 2} Appellee, Tonya LaCourse, filed a complaint for divorce from appellant on 

September 9, 2019. On May 24, 2021, the trial court granted the parties a divorce 

through a final judgment entry. In granting the divorce, the trial court found “that the 

parties have settled all their rights and interests arising out of and relating to division of 

property * * * and after reviewing the agreement of the parties find same to be fair and 

equitable and hereby approves same.” Relevant to the present appeal, the parties agreed 

that appellant would “retain as his own, free from any claim on the part of [appellee] all 

right, title, and interest in and to his * * * pension plans, and other retirement plans in his 

possession[.]” Both parties and their respective counsel signed the divorce decree and the 

trial court granted them their divorce through a consent judgment entry.

{¶ 3} On November 23, 2021, appellee filed a motion for relief from that

judgment pursuant to Civ.R. 60(B). In her motion, appellee alleged that appellant had 

concealed an employer pension plan prior to settling their divorce action. This, she 

argued, entitled her to relief from the May 24, 2021 judgment granting their divorce 

pursuant to Civ.R. 60(B)(1), (2), (3), and (5), because the pension plan should have been 

included in the parties’ division of marital property agreement. Appellant did not timely 

file a response to appellee’s motion. Instead, the record reflects that the parties engaged 

in settlement discussions aimed at resolving the dispute. Those discussions ultimately 

resulted in the parties consenting to the entry of a February 16, 2022 nunc pro tunc 
3.

judgment granting appellee “one half of the marital value of Defendant’s pension plans 

and retirement plans[.]” The consent entry was signed by counsel for both parties. 

{¶ 4} On March 1, 2022, appellant filed a motion for leave to file an opposition to 

appellee’s already-granted Civ.R. 60(B) motion for relief from judgment. The motion for 

leave sought only to file an opposition but did not identify a reason he had not timely 

responded. On March 2, 2022, appellant filed a motion to vacate the February 16, 2022 

consent judgment. In that motion, appellant argued that his prior counsel consented to 

the February 16, 2022 judgment entry without his authorization. Appellant submitted an 

affidavit identifying an alleged breakdown in communication with his counsel in support 

of his motion. Appellee did not file an opposition to either motion. 

{¶ 5} On March 3, 2022, the trial court denied appellant’s motion for leave to file 

his opposition to appellee’s motion for relief, finding that it had been rendered moot by 

the prior granting of appellee’s motion. On March 15, 2022, the trial court denied 

appellant’s motion to vacate the February 16, 2022 consent judgment entry granting 

appellee’s motion. In denying the motion to vacate, the trial court construed appellant’s 

allegations as a motion for relief from judgment pursuant to Civ.R. 60(B). The trial court 

held that allegations that trial counsel consented to a judgment entry without their client’s 

authorization does not provide grounds for relief from judgment under Civ.R. 60(B)(1) 

and denied appellant’s motion. 
4.

B. Assignments of Error

{¶ 6} Appellant timely appealed and asserts the following errors for our review:

1. The trial court’s lack of subject matter jurisdiction to modify a final property 

division rendered the February 16, 2022 order voidable.

2. Appellant alleged a meritorious defense and demonstrated an entitlement to 

relief under at least one of the grounds enumerated by Civ.R. 60(B). 

II. Law and Analysis

A. The trial court had subject matter jurisdiction to modify the parties’ divorce 

decree pursuant to R.C. 3105.171.

{¶ 7} In his first assignment of error, appellant argues that the trial court lacked 

subject matter jurisdiction to modify the parties’ May 24, 2021 divorce decree. Appellant 

makes two arguments in support of his assigned error. First, he argues that because the 

trial court’s judgment resulted in a substantive change to the prior judgment and was, 

therefore, not subject to modification through a nunc pro tunc order. Second, he alleges 

that appellee’s filing of a Civ.R. 60(B) motion for relief from judgment from that decree, 

and his counsel’s lack of authorization to reach a settlement on the disputed issue, did not 

satisfy the requirements of R.C. 3105.171 to provide the trial court with continuing 

jurisdiction to grant the modification. We address appellant’s arguments in turn.

1. The trial court’s identification of the February 16, 2022 judgment entry 

as a nunc pro tunc order does not constitute reversible error.

{¶ 8} A trial court’s issuance of a nunc pro tunc order is to “correct errors which 

are clerical in nature.” See Friedrich v. Honeywell, 6th Dist. Lucas No. L-08-1300, 2009-
5.

Ohio-661, ¶ 10. Nunc pro tunc entries cannot be used to make substantive changes to a 

prior judgment and are limited to stating “judicial action previously and actually taken * 

* * [to ] make the journal speak the truth.” Infrasys, Inc. v. Brothers Pavement Products 

Corp., 2020-Ohio-1157, 152 N.E.3d 1274, ¶ 20 (6th Dist.), citing State ex rel. Rogers v. 

Rankin, 154 Ohio St.23, 26, 93 N.E.2d 281 (1950). Using a nunc pro tunc entry to make 

substantive changes to a prior judgment constitutes reversible error. Id. at ¶ 20-21. It is 

undisputed that the February 16, 2022 consent judgment entry constitutes a substantive 

modification to the prior divorce decree and does not correct a clerical error. Appellant

argues that because the modification of the divorce decree constituted a substantive 

change, the trial court erred in granting the modification through the issuance of a nunc 

pro tunc judgment. We agree that the substantive modification of the parties’ divorce 

decree was not subject to a nunc pro tunc order. However, we find that the trial court’s 

February 16, 2022 judgment was not a nunc pro tunc order despite its caption.

{¶ 9} “Just because a trial court refers to an entry as nunc pro tunc does not make 

it so established.” Gauthier v. Gauthier, 12th Dist. Warren No., 2019-Ohio-4208, ¶ 71, 

citing State v. Yeaples, 180 Ohio App.3d 720, 2009-Ohio-184, 907 N.E.2d 333, ¶ 15 (3d 

Dist.). The substance of the judgment entry determines whether the judgment actually 

constitutes a nunc pro tunc entry or was incorrectly identified as such. See Yeaples at ¶ 

71-72 (holding that the trial court’s nunc pro tunc judgment entry was not actually a nunc 

pro tunc entry, despite its title, as it was the first recitation of all substantive findings and 

only modified an interlocutory order); State v. Shamaly, 8th Dist. Cuyahoga No. 88409, 
6.

2007-Ohio-3409, ¶ 7-8 (holding that the judgment entry identifying the amount of the 

fine imposed was not a nunc pro tunc order as it was the actual imposition of judgment 

on the offender because it did not correct any clerical errors in a prior order stating that a 

fine would be imposed). 

{¶ 10} Further, when an incorrect statement in a judgment entry does not result in 

prejudice to the appellant, the inclusion of those statements does not constitute reversible 

error. See First Place Bank v. Blythe, 7th Dist. Columbiana No. 12 CO 27, 2013-Ohio2550, ¶ 2, 32 (holding that an incorrect statement in a judgment entry that does not serve 

as the basis for the final judgment is not a reversible error because appellant did not 

suffer prejudice resulting from the incorrect statement); Myers v. Myers, 153 Ohio 

App.3d 243, 2003-Ohio-3552, ¶ 40 (7th Dist.) (holding that a trial court’s inclusion of 

superfluous findings in its judgment entry that did not serve as the basis for the judgment 

did not constitute prejudicial error). 

{¶ 11} Here, despite the judgment entry’s caption, the trial court did not actually 

grant the modification as the correction of a clerical error in the prior judgment. Instead, 

the record clearly shows that the trial court’s modification of the divorce decree was 

accomplished through the granting of appellee’s motion for relief from judgment and “by 

consent of the parties.” Therefore, the February 16, 2022 judgment entry was not a nunc 

pro tunc entry, though captioned as such, but was actually a consent judgment entry 

granting relief from the prior decree and constitutes the court’s substantive final judgment 

on an issue raised subsequent to that decree. Appellant’s argument that the trial court’s 
7.

February 16, 2022 substantive modification of the prior divorce decree could not be 

accomplished through the issuance of a nunc pro tunc order is sound, but misplaced. The 

trial court did not improperly exceed the scope of a nunc pro tunc order because it did not 

issue a nunc pro tunc order. Moreover, appellant did not suffer any prejudice as a result 

of this misidentification. As a result, appellant’s argument that the trial court committed 

reversible error by issuing a nunc pro tunc order to substantively modify its prior 

judgment is without merit. 

2. The parties’ consent entry provided the trial court with jurisdiction to 

modify the divorce decree.

{¶ 12} Appellant also argues that the trial court lacked jurisdiction to modify the 

divorce decree. Specifically, appellant argues that he did not authorize his counsel to 

settle appellee’s Civ.R. 60(B) motion through a consent judgment entry. As a result, he 

argues, the trial court did not have continuing jurisdiction pursuant to R.C. 3105.171(I) to 

modify the decree. R.C. 3105.171(I) states “[a] division or disbursement of property or a 

distributive award made under [R.C. 23105.171] is not subject to future modification by 

the court except upon the express written consent or agreement to the modification by 

both spouses.” 

{¶ 13} As a preliminary matter, we note that “[a]ppellate review of a trial court’s 

order is limited to the record made in the trial court.” Salpietro v. Salpietro, 2023-Ohio169, -- N.E.3d --, (6th Dist.) ¶ 9, citing Fifth Third Bank v. Fin. S. Office Partners, Ltd., 

2d Dist. Montgomery No. 23762, 2010-Ohio-5638. “The record that we can consider is 
8.

‘the record as it existed at the time the trial court rendered judgment.’” Id., citing Leiby 

v. Univ. of Akron, 10th Dist. Franklin No. 05AP-1281, 2006-Ohio-2831, ¶ 7. The trial 

court approved the consent judgment entry modifying the divorce decree on February 16, 

2022. At that time, the only pending motion was appellee’s Civ.R. 60(B) motion for 

relief from judgment. The trial court was presented with a judgment entry, signed by 

both parties’ counsel, consenting to the judgment entry modifying the prior decree and 

therefore resolving the only motion pending. It was not until appellant retained new

counsel, after the trial court granted the consent judgment, that appellant filed his March 

1, 2022 motion for leave to oppose appellee’s Civ.R. 60(B) motion and his March 2, 

2022 motion to vacate the consent judgment entry. In other words, appellant’s argument 

that the trial court should have considered his March 1, 2022 and March 2, 2022 filings 

before approving the consent judgment entry is inappropriate because appellee’s motion 

had been ruled on prior to those filings. Therefore, we limit our review of the trial 

court’s granting of the consent judgment entry to the record as it existed on February 16, 

2022. 

{¶ 14} R.C. 3105.171(I) provides a trial court with continuing jurisdiction to 

modify a judgment entry dividing the parties’ marital property provided the parties give 

written consent to the modification. We find that the signed consent entry satisfies the 

requirements of R.C. 3105.171(I) and provided the trial court with jurisdiction to grant 

the modification. Appellant’s argument that the trial court lacked jurisdiction is without 

merit.
9.

{¶ 15} Having reviewed the record, we find that the trial court did not err in 

granting the parties’ consent judgment entry modifying the divorce decree. The trial 

court’s identification of the order as being nunc pro tunc did not result in prejudice 

against appellant, and the parties’ consent judgment entry satisfied the requirements of 

R.C. 3105.171(I). Therefore, the trial court had continuing jurisdiction to grant the 

modification and appellant’s first assignment of error is found not well-taken.

B. The trial court did not err in denying appellant’s motion to vacate.

{¶ 16} In his second assignment of error, appellant argues that the trial court erred 

in denying his March 2, 2022 motion to vacate the February 16, 2022 judgment. 

Appellant alleges that the trial court’s failure to consider whether he was entitled to relief 

from judgment pursuant to Civ.R. 60(B)(3) and (B)(5) constitutes reversible error. We 

disagree.

{¶ 17} Initially, we note that appellant’s March 2, 2022 motion to vacate does not 

reference Civ.R. 60(B). “A trial court has limited authority to vacate a final judgment.” 

Liberatore v. Castorani, 9th Dist. Lorain No. 20CA011609, 2021-Ohio-1684, ¶ 14. 

“Ohio’s Rules of Civil Procedure specifically limit relief from final judgments to motions 

‘by means of Civ.R. 50(B) (motion notwithstanding the verdict), Civ.R. 59 (motion for a 

new trial), and Civ.R. 60(B) (motion for relief from judgment).’” Id. When a 

generically-titled motion to vacate seeks relief from judgment, courts may construe the 

motion as a motion filed pursuant to Civ.R. 60(B). See Mtge. Electronic Registration 

Sys., Inc. v. Harris-Gordon, 6th Dist. Lucas No. L-10-1176, 2011-Ohio-1970, ¶ 11; 
10.

Antonio Sofo & Son Importing Co. v. Grinders, Inc., 6th Dist. Lucas No. L-11-1113, 

2012-Ohio-1109, ¶ 6; Liberatore at ¶ 14. 

{¶ 18} Civ.R. 60(B) authorizes a party to seek relief from judgment for the 

following reasons:

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

{¶ 19} Civ.R. 60(B)(5) is a “catch-all provision reflecting the inherent power of a 

court to relieve a person from the unjust operation of a judgment, but is not to be used as 

a substitute for any of the more specific provisions of Civ.R. 60(B).” Henry County Bank 

v. Dudley, 6th Dist. Lucas No. L-21-1192, 2022-Ohio-4192, ¶ 12, quoting Caruso-Ciresi, 

Inc. v. Lohman, 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983), paragraph one of the syllabus.

{¶ 20} In order to prevail on a motion for relief from judgment, “the moving party 

must demonstrate that he or she (1) has a meritorious defense or claim to present if the 

relief is granted, (2) is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) 
11.

through (5), and (3) has made the motion within a reasonable time unless the motion is 

based upon Civ.R. 60(B)(1), (2), or (3), in which case it must be made not more than one 

year after the judgment.” Oullette v. Oullette, 2020-Ohio-705, 152 N.E.3d 528, ¶ 34 (6th 

Dist). “A party seeking relief under Civ.R. 60(B) is required to allege ‘operative facts’ 

that support the claim[.]” Henry County Bank at ¶ 13, citing Treasury of Lucas County. 

v. Mt. Airy Investments, Ltd., 6th Dist. Lucas No. L-18-1254, 2019-Ohio-3932, ¶ 24. “We 

review a determination under Civ.R. 60(B) for an abuse of discretion.” Id. “An ‘abuse of 

discretion’ requires a finding of more than an error of judgment and implies the trial court 

acted unreasonably, arbitrarily, or unconscionably.” Id. at ¶ 35. 

{¶ 21} Appellant’s motion to vacate only alleged that he was entitled to relief from 

judgment because he did not authorize his counsel to enter into the February 16, 2022 

consent judgment entry. The trial court denied appellant’s motion, citing Maumee Equip. 

Inc. v. Smith, 6th Dist. Lucas No. L-85-168, 1985 WL 8227 (Nov. 22, 1985). In Maumee 

Equipment, this court held that, “[a]s a general rule, the neglect of a party’s attorney will 

be imputed to the party for purposes of Civ.R. 60(B)(1).” Id., citing Link v. Wabash R.R. 

Co., 370 U.S. 626. Further, this court recognized that “if an attorney’s conduct falls 

substantially below what is reasonable under the circumstances, the client’s remedy is 

against the attorney in a suit for malpractice.” Id. at 2. However, “any ‘mistake, 

inadvertence, surprise or excusable neglect,’ as set forth in Civ.R. 60(B)(1), by counsel 

for a party does not entitle that party to relief from judgment under the rule.” Id. 

Applying this authority to appellant’s motion, the trial court found that any alleged lack 
12.

of settlement authority granted to appellant’s counsel did not constitute grounds for relief 

under Civ.R. 60(B)(1) and denied appellant’s motion.

{¶ 22} Appellant does not challenge the trial court’s decision as to the lack of 

grounds for relief under Civ.R. 60(B)(1). Instead, he argues for the first time here on 

appeal that the trial court should have considered whether he alleged sufficient grounds 

for relief from judgment under Civ.R. 60(B)(3) and (5). As to Civ.R. 60(B)(3), appellant 

argues that appellee’s counsel committed fraud by submitting the consent judgment entry 

to the court despite allegedly being aware that appellant’s counsel did not have settlement 

authority. As to Civ.R. 60(B)(5), appellant argues that his and appellee’s counsel’s 

submission of a consent judgment entry, when no agreement had been reached,

constituted an “other reason justifying relief from the judgment.” Appellant argues that 

the trial court abused its discretion by not considering these grounds as the basis for 

relief. We find that appellant improperly raises these issues for the first time on appeal.

{¶ 23} “Arguments raised for the first time on appeal are generally barred.” Lester 

v. Don’s Automotive Group, LLC, 181 N.E.3d 1129, 2021-Ohio-4397, ¶ 49 (6th Dist.). 

“Such arguments are barred by the doctrine of waiver for failure to raise these arguments 

before the trial court.” State v. Talley, 6th Dist. Lucas Nos. L-22-1131, L-20-1132, 2021-

Ohio-2558, ¶ 22. “Litigants must not be permitted to hold their arguments in reserve for 

appeal, thus evading the trial court process.” Id. Appellant’s sole argument in his motion 

to vacate was that his counsel did not have authority to settle appellee’s claims on his 

behalf. This, he argued, resulted in the trial court’s lack of jurisdiction over appellee’s 
13.

motion for relief from judgment and, in turn, rendered the consent judgment entry 

resolving appellee’s motion void as a matter of law. Appellant’s motion does not allege 

any fraud committed by appellee’s counsel in obtaining a modification of the divorce 

decree through the consent judgment entry that would support his claim for relief through 

Civ.R. 60(B)(3). 

{¶ 24} Further, appellant’s motion does not allege any operative facts beyond the 

lack of settlement authority as the basis for relief from judgment. As we previously 

noted, mistakes by counsel, or surprise resulting from those mistakes, are attributable to 

appellant and reviewed under Civ.R. 60(B)(1). See Maumee Equipment at 2. Despite 

this, appellant now argues that his counsel’s lack of authorization to settle the dispute 

should be reviewed under Civ.R. 60(B)(5)’s catch-all provision. Appellant cannot use 

Civ.R. 60(B)(5)’s “catch-all provision” as a “substitute for one of the more specific 

provisions of Civ.R. 60(B).” Henry County Bank, 6th Dist. Lucas No. L-21-1192, 2022-

Ohio-4192, at ¶ 12. Put simply, appellant is precluded from arguing that this court 

should consider whether the trial court abused its discretion in denying his motion under 

that subsection when the only grounds for relief alleged in his motion are governed by 

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

{¶ 25} In sum, appellant’s motion to vacate did not allege any fraudulent conduct

by an adverse party, or any facts supporting application of the catch-all provision, as 

grounds for relief from judgment pursuant to Civ.R. 60(B)(3) and (5), respectively. The 

trial court could not have abused its discretion by failing to consider these unalleged 
14.

arguments. Moreover, appellant is barred from raising these arguments for the first time 

on appeal. Finally, appellant does not challenge the trial court’s proper denial of his 

motion to vacate under Civ.R. 60(B)(1). As a result, he has not shown that the trial court 

abused its discretion in denying his motion to vacate and his second assignment of error 

is found not well-taken. 

III. Conclusion

{¶ 26} For the foregoing reasons, we find appellant’s first and second assignments 

of error not well-taken. Therefore, we affirm the March 15, 2022 judgment of the Lucas 

County Court of Common Pleas, Domestic Relations Division.

{¶ 27} Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. 

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. ____________________________

JUDGE

Gene A. Zmuda, J. 

____________________________

Myron C. Duhart, P.J. JUDGE

CONCUR. 

____________________________

JUDGE

This decision is subject to further editing by the Supreme Court of

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court’s web site at:

http://www.supremecourt.ohio.gov/ROD/docs/.