[Cite as Paintiff v. Eberwein,
2016-Ohio-5464.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
RUSSELL PAINTIFF C.A. No. 14CA0117-M
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KATHLEEN EBERWEIN COURT OF COMMON PLEAS
fka KATHLEEN PAINTIFF COUNTY OF MEDINA, OHIO
CASE No. 12 DR 0423
Appellee
DECISION AND JOURNAL ENTRY
Dated: August 22, 2016
CARR, Presiding Judge.
{¶1} Plaintiff-Appellant, Russell Paintiff, Jr. (“Husband”), appeals from the judgment
of the Medina County Court of Common Pleas, Domestic Relations Division. This Court
affirms.
I.
{¶2} Husband and Defendant-Appellee, Kathleen Eberwein f/k/a Paintiff (“Wife”),
were married in August 1989. Husband filed for divorce in August 2012, and Wife
counterclaimed for the same. On May 30, 2013, the parties appeared before the trial court for the
final hearing on their divorce, but the contested hearing never went forward. Counsel for both
parties informed the court that they had reached a settlement, and the settlement was read into
the record. Following the in-court settlement, the trial court entered a notation on the docket,
indicating that the parties had settled.
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{¶3} Before the court filed a judgment entry on the parties’ settlement, Husband filed a
motion for relief from judgment. In his June 28, 2013 motion, Husband asked the court to vacate
the parties’ oral settlement because his mental faculties were impaired at the time the settlement
occurred. He argued that he was unable to meaningfully engage in the negotiations and
comprehend the proceedings because he was sleep deprived, was suffering from PTSD, and had
ingested a large amount of prescription medication in an attempt to cope with his stress and
anxiety. The court ultimately dismissed Husband’s motion because he filed it before the court
entered judgment. On July 3, 2013, the trial court entered a judgment consistent with the parties’
settlement. Husband did not appeal from the judgment entry of divorce.
{¶4} Subsequently, both parties filed motions for relief from judgment. Husband filed
his motion on the same grounds that he asserted in his earlier motion. Meanwhile, Wife filed her
motion on the ground that the judgment entry inadvertently identified Husband’s retirement
account as a SERS account rather than an OPERS account. The trial court granted Wife’s
motion and issued a nunc pro tunc entry. It then set the matter for a hearing on Husband’s
motion. Because the trial judge who presided over the parties’ in-court settlement recused
herself, a different trial judge conducted the hearing on Husband’s motion. Following the
hearing, both parties filed post-hearing briefs. The trial court then issued a judgment entry
denying Husband’s motion for relief from judgment.
{¶5} Husband now appeals from the court’s denial of his motion and raises two
assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT DISMISSED MOTION FOR RELIEF
FROM JUDGMENT FILED ON SEPTEMBER 26, 2013 BECAUSE IT DID
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NOT PROPERLY ADDRESS LACK OF MENTAL CAPACITY OF THE
HUSBAND AS A RESULT OF HIS PERSONAL ASSAULT ON AUGUST 8,
2012, COERCION OF THE COURT AND HIS MEDICAL DIAGNOSIS OF
POST-TRAUMATIC STRESS DISORDER IN RELATIONSHIP TO
WILLINGLY ENTER IN THE MAY 30, 2013 SETTLEMENT AGREEMENT
PURSUANT TO RULE 60(B)(5).
{¶6} In his first assignment of error, Husband argues that the court erred by denying
his motion for relief from judgment. Specifically, he argues that he was entitled to relief from
judgment because he demonstrated that he lacked the mental capacity to enter into a settlement
on the day that the parties settled.
{¶7} At the outset, we note that Husband has appeared pro se on appeal. With respect
to pro se litigants, this Court has observed:
[P]ro se litigants should be granted reasonable leeway such that their motions and
pleadings should be liberally construed so as to decide the issues on the merits, as
opposed to technicalities. However, a pro se litigant is presumed to have
knowledge of the law and correct legal procedures so that he remains subject to
the same rules and procedures to which represented litigants are bound. He is not
given greater rights than represented parties, and must bear the consequences of
his mistakes. This Court, therefore, must hold [pro se appellants] to the same
standard as any represented party.
(Internal citations omitted.) Sherlock v. Myers, 9th Dist. No. 22071, 2004-Ohio-5178, ¶ 3.
{¶8} “The decision to grant or deny a motion for relief from judgment pursuant to
Civ.R. 60(B) lies in the sound discretion of the trial court and will not be disturbed absent an
abuse of the discretion.” Auto Owners Ins. Co. v. Truck Line Dispatch, Inc., 9th Dist. Summit
No. 26581, 2013-Ohio-2988, ¶ 6. An abuse of discretion implies that the trial court’s attitude
was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219
(1983). When applying the abuse of discretion standard, this Court may not substitute its
judgment for that of the trial court. Pons v. Ohio State Med. Bd.,
66 Ohio St.3d 619, 621 (1993).
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{¶9} To prevail on a Civ.R. 60(B) motion for relief from judgment, the moving party
must demonstrate that
(1) the party has a meritorious defense or claim to present if relief is granted; (2)
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 Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of
the syllabus. “Civ.R. 60(B)(5) operates as a catch-all provision and ‘reflects the inherent power
of a court to relieve a person from the unjust operation of a judgment.’” Wells Fargo Bank, N.A.
v. Clucas, 9th Dist. Summit No. 27264,
2015-Ohio-88, ¶ 13, quoting Chuck Oeder Inc. v. Bower,
9th Dist. Summit No. 23785,
2007-Ohio-7032, ¶ 10. It “is only to be used in an extraordinary
and unusual case when the interests of justice warrant[] it.” (Internal quotation and citation
omitted.) Myers v. Myers, 9th Dist. Summit No. 22393,
2005-Ohio-3800, ¶ 14.
{¶10} Initially, we note that Husband repeatedly refers to a motion for relief from
judgment that he filed on September 26, 2013. Husband, however, never filed a motion for relief
from judgment on that day, Wife did. Husband filed a motion for relief from judgment on June
28, 2013, which the court dismissed, and another motion on January 31, 2014, which the court
denied. Husband has appealed strictly from the court’s ruling on the latter motion. Accordingly,
to the extent he argues that the court erred by dismissing his September 26, 2013 motion, we
presume that he means to challenge the court’s denial of his January 31, 2014 motion. We limit
our review to the court’s denial of that motion.
{¶11} Husband sought relief from judgment on the basis that he was mentally incapable
of understanding and participating in the settlement discussions the day that the parties settled.
In his affidavit, Husband averred that he suffered from PTSD as well as physical pain and that he
“took no less than thirteen pills in a fifteen and one half hour period leading up to [his] divorce
5
hearing.” He further averred that he did not remember participating in the settlement hearing
because the prescription medication compromised his mental faculties. Likewise, Husband
testified at the hearing on his motion for relief that he remembered very little of the in-court
settlement hearing. He stated that he was suffering from stress and pain leading up to the
hearing, so he kept taking his prescription medications to cope. According to Husband, he
briefly remembered speaking to his attorneys before the hearing and listening to them say that
the trial judge intended to award Wife lifetime alimony. He also recalled the court’s bailiff
commenting a few times that, if he did not settle with Wife, the judge would not be happy.
Husband testified that he did not recall agreeing to the specific terms of the settlement and that,
having reviewed those terms after the fact, he would not have agreed to them if he had been
coherent. Husband admitted that he never told anyone at the hearing that he was impaired, but
claimed that he did not realize it at the time.
{¶12} At the hearing on his motion for relief from judgment, Husband also presented the
testimony of his girlfriend, Eliza Demetriou. Ms. Demetriou testified that she was with Husband
in the days leading up to the scheduled divorce hearing and was concerned about the amount of
prescription medication that he was taking. She testified that Husband called her early on the
morning of the scheduled divorce hearing and sounded very tired. She also spoke to him around
lunchtime and testified that he sounded confused. According to Ms. Demetriou, Husband called
her again right after the settlement occurred and his speech was slurred. She testified that
Husband told her that he did not know what had happened. Ms. Demetriou stated that she was
present when Husband received the transcript of the settlement hearing. She testified that he was
astounded when he read the transcript and saw the terms to which he had agreed.
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{¶13} As previously noted, Husband was represented by two attorneys during the in-
court settlement hearing. The hearing transcript reflects that Wife’s counsel placed the terms of
the settlement on the record, and one of Husband’s attorneys contributed on several points.
Husband then asked to speak and expressed his discontent with Wife receiving a particular item
from the marital home. That item was then discussed in detail, with Husband speaking several
more times and responding to the court’s statements. Husband offered intelligent responses and
never indicated that he was confused. Further, Husband’s attorney questioned him at the
conclusion of the hearing. Husband agreed that he had contributed to the preparation of the
settlement agreement, but also stated that he had a question. At that point, the court stopped the
proceedings to allow Husband to confer with his counsel. When the proceedings resumed,
Husband agreed that he believed the separation agreement was fair and equitable under the
circumstances. He further agreed that he was willing to adopt the settlement.
{¶14} The trial court determined that Husband was not entitled to relief from judgment
because the transcript of the in-court settlement reflected that he actively participated in the
hearing and asked meaningful questions. The court noted that, at one point, Husband
specifically asked to speak because he was unhappy with a portion of the settlement, which
entitled Wife to a particular item from the marital residence. The court further noted that the trial
judge later stopped the proceedings to allow Husband to confer with his counsel because
Husband had said that he had a question. The court found that there was no evidence that
Husband had failed to comprehend the proceedings, that the property distribution was
inequitable, or that Husband had proceeded without the advice of counsel. Consequently, the
court concluded that Husband failed to meet his burden under Civ.R. 60(B)(5).
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{¶15} Upon review, we cannot conclude that the trial court abused its discretion when it
denied Husband’s motion for relief from judgment. Although Husband claims that he was under
the influence of narcotics and unable to comprehend the settlement proceedings, the transcript
from the hearing contradicts his claims. As the trial court noted, Husband actively participated
in the proceeding, interjected when he disagreed with an item, offered intelligent responses, and
posed a question to his counsel before indicating that he adopted the terms of the settlement. The
transcript does not contain any instances of Husband struggling to find the right words or answer
questions. It also does not contain any instances of the trial judge or any of the three attorneys
present noting their concern that Husband appeared to be confused or slurring his speech.
Husband has not shown that this is the “extraordinary and unusual case” where relief under
Civ.R. 60(B)(5) would have been warranted. Myers, 2005-Ohio-3800, at ¶ 14. Consequently,
the trial court’s decision to deny his motion for relief was not unreasonable, arbitrary, or
unconscionable.
{¶16} Husband also argues that the parties’ settlement was the result of coercion. He
avers that, on the day of settlement, the trial court’s bailiff repeatedly informed him and his
attorneys that the judge would be unhappy if they refused to settle. He also avers that the trial
judge threatened to award Wife lifetime alimony if he refused to settle. He argues that the
pressure he felt from the trial judge and her bailiff amounted to undue influence and “contributed
to his confusion and state of mind.”
{¶17} Husband did not argue undue influence or coercion as a result of the trial judge
and/or her bailiff in his motion for relief from judgment, the affidavit he attached to his motion,
or the post-hearing brief that he filed in support of his motion. Moreover, none of the factual
allegations he cites in support of his argument appear in the transcript from the in-court
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settlement hearing. See Clayton v. Walker, 9th Dist. Summit No. 26538, 2013-Ohio-2318, ¶ 11,
quoting State v. Ishmail,
54 Ohio St.2d 402, 406 (1978) (reviewing courts are “‘limited to what
transpired in the trial court as reflected by the record made of the proceedings’”). This Court
will not address Husband’s additional arguments for the first time on appeal. See Rozhon v.
Rozhon, 9th Dist. Medina No. 05CA0075-M,
2006-Ohio-3118, ¶ 18. Husband’s first assignment
of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED BY ASSUMING WIFE COUNSEL’S MISTAKE
PERTAINING TO THE STRS PENSION AS A CLERICAL ERROR WHEN IN
FACT IT WAS A MISREPRESENTATION TO THE COURT ON MAY 30,
2013. TRIAL COURT ALLOWED THE MISREPRESENTATION TO STAND
AS A CLERICAL ERROR WITHOUT NOTIFYING THE HUSBAND OR
SETTING ASIDE THE SETTLEMENT PURSUANT TO RULE 60(B)(5).
{¶18} In his second assignment of error, Husband argues that the trial court erred when
it issued a nunc pro tunc entry in response to Wife’s motion for relief from judgment. He argues
that, during the in-court settlement hearing, Wife’s counsel misrepresented to the court that
Husband had an STRS pension when, in fact, he never had that type of pension. Because there
was a misrepresentation, Husband argues, there was no clerical error that the court could simply
correct through a nunc pro tunc entry.
{¶19} The record reflects that, at the in-court settlement hearing, Wife’s counsel
informed the trial court that Husband had several financial accounts, one of which was an SERS
account.1 Following the court’s entry of judgment, Wife’s counsel notified the court that the
account was, in fact, an OPERS account and not an SERS account. Husband argues that
1
On appeal, Husband mistakenly asserts that counsel referred to the account as an STRS
account. Wife’s counsel never indicated that Husband possessed an STRS account. Instead,
counsel referred to the account as an SERS account. The court’s original judgment entry also
refers to the account as an SERS account.
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counsel’s in-court statement amounted to fraud. He further argues that Wife’s counsel somehow
attempted to defraud the court by mentioning that he had another account worth $298,000 and by
not providing a full disclosure of Wife’s financial statements. Because Wife’s counsel defrauded
the court, he argues, the court erred by not providing him relief from judgment under Civ.R.
60(B)(5).
{¶20} “Issues that were not raised to the trial court may not be considered for the first
time on appeal.” Rozhon, 2006-Ohio-3118, at ¶ 18. Husband never sought relief from judgment
on the basis that Wife’s counsel defrauded the court in the manner set forth above. At the
hearing on his motion for relief, he pointed to the mislabeling of the pension account as evidence
that he was unable to comprehend the proceedings. Husband testified that the discussion of that
non-existent account was a “prime example” that he had agreed to something without “even
know[ing] what it [was].” He did not argue, however, that Wife’s counsel had defrauded the
court such that he was entitled to Civ.R. 60(B) relief. Because he failed to raise this issue in
support of his motion for relief from judgment, he may not raise it now. See Miller v. Miller, 9th
Dist. Summit No. 21770,
2004-Ohio-1989, ¶ 14. Husband’s second assignment of error is
overruled.
III.
{¶21} Husband’s assignments of error are overruled. The judgment of the Medina
County Court of Common Pleas, Domestic Relations Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
MOORE, J.
CONCUR.
APPEARANCES:
RUSSELL L. PAINTIFF, JR., pro se, Appellant.
THOMAS KELLY, Attorney at Law, for Appellee.
