Kell v. Verderber

[Cite as Kell v. Verderber, 2013-Ohio-4223.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

MARY JO KELL, : APPEAL NO. C-120665
TRIAL NO. A-7302388
Plaintiff/Third-Party Plaintiff- :
Appellant, O P I N I O N.
:
vs.
:
RUDOLPH F. VERDERBER,
:
Defendant-Appellee,
:
and
:
KATHLEEN S. VERDERBER,
:
and
:
VERDERBER SERVICES, INC.
:
Third-Party Defendants-
Appellees. :

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

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded

Date of Judgment Entry on Appeal: September 27, 2013

Barbara J. Howard Co., L.P.A., Barbara J. Howard and Thomas E. Meade, for
Plaintiff/Third-Party Plaintiff-Appellant,

Taft, Stettinius & Hollister, LLP, and Aimee L. Keller, for Defendant-Appellee
Rudolph Verderber, and Third-Party Defendants-Appellees Kathleen S. Verderber
and Verderber Services, Inc.

Please note: this case has been removed from the accelerated calendar.
 OHIO FIRST DISTRICT COURT OF APPEALS

D INKELACKER , Judge.

{¶1} Plaintiff/third-party plaintiff-appellant Mary Jo Kell appeals from a

decision of the Hamilton County Court of Common Pleas, Domestic Relations

Division, overruling her motion asking the court to hold defendant-appellee Rudolph

F. Verderber in contempt, overruling her Civ.R. 60(B) motion for relief from

judgment and granting summary judgment in favor of Rudolph and third-party

defendants-appellees Kathleen F. Verderber and Verderber Services, Inc. We find

merit in one of Mary Jo’s seven assignments of error. Therefore, we affirm the trial

court’s judgment in part and reverse it in part, and we remand the cause for further

proceedings.

I. Facts and Procedure

{¶2} Mary Jo and Rudolph were divorced in 1973. The divorce decree

incorporated the terms of a separation agreement. Paragraph 12 of the agreement

provided that Rudolph would execute a will leaving “no less than 50% of his estate to

the children of the parties.”

{¶3} During the marriage, Rudolph had authored, with Mary Jo’s

assistance, a textbook entitled The Challenge of Effective Speaking (“Challenge”).

Paragraph 9 of the separation agreement provided in pertinent part:

After the year 1972, Wife shall be entitled to one third of the royalties

that shall accrue from “Challenge of Effective Speaking” and Husband

shall have two thirds of the Royalties. It is understood by and between

the parties on or before May 1st, of each year beginning with May 1st,

1974, Husband shall fully account to Wife for Royalties received for

sales during the previous year. The above arrangement shall be

2
 OHIO FIRST DISTRICT COURT OF APPEALS

applicable to Editions 1 and 2 of “Challenge of Effective Speaking" and

to any subsequent editions.

{¶4} In 1979, Mary Jo filed a motion to show cause why Rudolph should

not be held in contempt for failing to pay royalties as required by paragraph 9 of the

separation agreement. A referee found Rudolph to be in contempt, and stated that

he could purge the contempt by paying the royalties as required by paragraph 9.

Rudolph filed objections to the referee’s report.

{¶5} But the trial court never ruled on the objections. On January 29,

1981, the parties filed an entry of satisfaction. It stated: “Now comes the plaintiff,

Mary Jo Kell, and says that the dispute between the parties has been satisfied and the

Motion to Show Cause is hereby dismissed with prejudice[.]”

{¶6} The settlement agreement, which was never filed with the court,

stated that in exchange for a $40,000 lump-sum payment of child support from

Rudolph, Mary Jo agreed “to dismiss with prejudice the pending court action against

Rudolph F. Verderber for contempt of court, for failure to make payments under

Section nine (9) of the Separation Agreement incorporated into the Decree of

Divorce between the parties[.]” She further agreed to “release Rudolph F. Verderber

from any obligation under said Section nine (9).” Finally, the agreement stated that

“[s]ave and except as to the matters contained in this Agreement, each of the parties

do hereby forever release the other from any and all claims, liabilities, causes of

action, and all of the covenants, terms, conditions, obligations as set forth or arising

out of in [sic] Section nine (9) of the aforesaid Separation Agreement.”

{¶7} Thirty years later, on August 4, 2011, Mary Jo filed a motion for

contempt, a motion for relief from judgment under Civ.R. 60(B), a motion for the

imposition of a constructive trust, and a motion to add third-party defendants. In

3
 OHIO FIRST DISTRICT COURT OF APPEALS

those motions, she alleged that Rudolph had failed to comply with the provisions of

paragraphs 9 and 12 of the separation agreement.

{¶8} According to Mary Jo, after she had filed her 1979 contempt motion,

Rudolph had told her that Challenge was no longer widely circulated and, therefore,

no future distribution of royalties would be forthcoming. She did not discover until

March 2011 that Rudolph had misrepresented that Challenge was no longer

generating royalties. As a direct result of that misrepresentation, she had not

pursued her rights, and Rudolph had been able to avoid accounting for and paying

royalties. Instead, he had diverted Challenge royalties to a privately held corporation

under his control, Verderber Services.

{¶9} Mary Jo also contended that Rudolph had failed to disclose the

existence of a new book entitled “Communicate!,” which she contended was written,

at least in part, during the marriage. She alleged that Communicate! was taken in

large part from Challenge. She stated, “For intents and purposes, it was a

‘subsequent edition’ of Challenge as contemplated by the [separation] Agreement

since the intent of the parties was to divide all marital property, including those

items with a future income stream.”

{¶10} Finally, Mary Jo contended that Rudolph had violated paragraph 12

of the separation agreement which required him to execute a will leaving at least 50

percent of his estate to the parties’ children. She alleged that she had discovered that

his estate plan had been changed and that his entire estate would flow into an

irrevocable trust, and that the sole beneficiary of that trust was Rudolph’s second

wife Kathleen for the remainder of her life. After her death, the residue would pass

to Rudolph’s children, one-quarter each to his two sons with Mary Jo and one-half to

his daughter with Kathleen. Mary Jo sought to file a third-party complaint against

Kathleen and Verderber Services.

4
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶11} Rudolph filed a motion to dismiss, arguing primarily that the 1981

settlement agreement precluded Mary Jo from seeking further royalties from the sale

of Challenge, and that Communicate! had not been written during the marriage. The

trial court overruled the motion to dismiss as it related to the issue of royalties under

paragraph 9 of the separation agreement.

{¶12} But the court declined to decide Mary Jo’s claim that Rudolph had

violated paragraph 12 of the separation agreement because his will did not leave at

least 50 percent of his estate to the parties’ two children. It found that it did not have

jurisdiction to hear the issue. Therefore, it granted Rudolph’s motion to dismiss

Mary Jo’s claims under paragraph 12 of the separation agreement.

{¶13} Finally, the court stated that no dispute existed that the royalties at

issue were assigned to Verderber Services and that Kathleen was the only acting

officer of that company because of Rudolph’s incapacity due to Alzheimer’s Disease.

Therefore, it granted Mary Jo’s motion to join Verderber Services and Kathleen as

third-party defendants.

{¶14} Subsequently, Mary Jo filed the third-party complaint against

Verderber Services and Kathleen. All three defendants filed a motion for summary

judgment on the remaining issues in Mary Jo’s motion: (1) the claim for royalties in

the motion for contempt, and (2) the motion for relief from judgment under Civ.R.

60(B). Mary Jo filed a motion for partial summary judgment on her claim for failure

to pay royalties from Challenge.

{¶15} The trial court found that Mary Jo’s motion, filed under the catch-all

provision of Civ.R. 60(B)(5), could not be used as a substitute for a motion under the

more specific provisions of Civ.R. 60(B), which must be brought within one year

after the judgment. As to the contempt claim for the failure to pay royalties, the trial

court found that “there is no genuine issue of material fact that Husband can be

5
 OHIO FIRST DISTRICT COURT OF APPEALS

found in contempt of a provision as to which Wife has released Husband by virtue of

the settlement agreement dated January 7, 1981.”

{¶16} Consequently, the court granted the defendants’ motion for summary

judgment and dismissed Mary Jo’s remaining claims against Rudolph. Because the

claims against Verderber Services and Kathleen were derivative of the claims against

Rudolph, the court also dismissed the claims against them. Finally, the court

overruled Mary Jo’s motion for partial summary judgment. This appeal followed.

II. Motion for Contempt as to the Will Provision of the Separation Agreement

{¶17} In her first assignment of error, Mary Jo contends that the trial court

erred in dismissing her claim for contempt as to paragraph 12 of the separation

agreement, which required Rudolph to leave the parties’ children 50 percent of his

estate. She argues that the trial court erred in finding that it did not have jurisdiction

to decide the issue and that it should have interpreted the agreement like any other

contract. This assignment of error is well taken.

{¶18} Paragraph 12 of the separation agreement provided that Rudolph

would execute a will leaving “no less than 50% of his estate to the children of the

parties.” In granting the motion to dismiss the contempt proceeding involving

paragraph 12, the trial court concluded that if paragraph 12 constituted child

support, the court had no jurisdiction to decide the issue. It relied on cases which

stated that in a divorce decree entered before 1974, a support obligation that did not

state a specific duration ended for each child upon the child reaching the age of 18.

See Motley v. Motley, 102 Ohio App.3d 67, 69-71, 656 N.E.2d 995 (9th Dist.1995);

Zweifel v. Price, 24 Ohio App.3d 101, 102-105, 493 N.E.2d 300 (10th Dist.1985). It

went on to find, “If the sums to be awarded to the parties’ sons pursuant to

paragraph [12] are not ‘support,’ this Court has no jurisdiction over said claim. * * *

6
 OHIO FIRST DISTRICT COURT OF APPEALS

[A]s a matter of law, whether paragraph [12] is child support or not, this Court has

no jurisdiction to hear it.” We disagree.

{¶19} R.C. 3105.011 states that “[t]he court of common pleas including

divisions of domestic relations, has full equitable powers and jurisdiction

appropriate to the determination of all domestic relations matters.” Additionally,

R.C. 3105.10(B)(2) states that “[a] separation agreement that was voluntarily entered

into by the parties may be enforceable by the court of common pleas upon the

motion of either party to the agreement, if the court determines that it would be in

the interests of justice and equity to require enforcement of the separation

agreement.” R.C. 3105.10(B)(3) further states that “[i]f a court of common pleas has

a division of domestic relations, all cases brought for enforcement of a separation

agreement under division (B)(1) or (2) of this section shall be assigned to the judges

of that division.”

{¶20} A domestic relations court has the power to “grant complete relief in a

matter which is primarily a domestic relations matter.” In re Dunn, 101 Ohio App.3d

1, 5, 654 N.E.2d 1303 (12th Dist.1995). In this case, the domestic relations court had

continuing jurisdiction to enforce the provisions of the separation agreement

incorporated into the divorce decree through a post-decree motion for contempt.

See Dvorak v. Dvorak, 11th Dist. Portage No. 2006-P-0003, 2006-Ohio-6875, ¶ 7;

Mulholland v. Mulholland, 1st Dist. Hamilton No. C-030931, 2005-Ohio-1196, ¶ 16-

17; Huffman v. Cox, 10th Dist. Franklin No. 02AP-803, 2003-Ohio-3642, ¶ 36.

{¶21} A separation agreement is a contract between the parties, subject to

the same rules of construction that govern other contracts. Condit v. Condit, 190

Ohio App.3d 634, 2010-Ohio-5202, 943 N.E.2d 1041, ¶ 11 (1st Dist.). Since the court

determined that it did not have jurisdiction over the issue, it never interpreted the

contract in the first instance. Consequently, we sustain Mary Jo’s first assignment of

7
 OHIO FIRST DISTRICT COURT OF APPEALS

error. We remand the matter to the trial court (1) to interpret the separation

agreement, (2) to conduct any necessary additional fact-finding, (3) to determine if

Rudolph is in violation of paragraph 12 of the separation agreement, and if so, (4) to

determine if Rudolph is in contempt in light of its interpretation of the agreement,

and, (5) if it finds he is in contempt, to decide the remedy for the contempt. See

State v. Kilbane, 61 Ohio St.2d 201, 206-207, 400 N.E.2d 386 (1980); In re Ayer, 119

Ohio App.3d 571, 577, 695 N.E.2d 1180 (1st Dist.).

III. Motion for Contempt as to the Royalties Provision of the Separation
Agreement

{¶22} We address Mary Jo’s remaining assignments of error out of order.

In her third assignment of error, she contends that the trial court erred in granting

summary judgment in favor of Rudolph on the royalties issue. She argues that

summary judgment is improper because Rudolph acknowledged his failure to pay

royalties to her and because his excuse for that failure to pay was based on an out-of-

court document. In her fourth assignment of error, she argues that the trial court

erred as a matter of law by modifying the property division contained in the

settlement agreement. In her fifth assignment of error, she contends that the trial

court erred in denying her motion for partial summary judgment because Rudolph

admitted that he had failed to comply with the court’s order in the divorce decree,

and that, therefore, the court should have found him in contempt. These

assignments of error are not well taken.

{¶23} Generally, the trial court enforces the provisions of a separation

agreement incorporated into a divorce decree through a contempt action. Harris v.

Harris, 58 Ohio St.2d 303, 390 N.E.2d 789 (1979), paragraph one of the syllabus;

Blazic v. Blazic, 1st Dist. Hamilton Nos. C-040414 and C-040440, 2005-Ohio-4417,

¶ 20. The movant in a contempt proceeding must establish by clear and convincing

8
 OHIO FIRST DISTRICT COURT OF APPEALS

evidence that the obligor is in contempt. Blazic at ¶ 21. Decisions in contempt

proceedings lie within the trial court’s discretion. An appellate court will not reverse

the trial court’s decision absent an abuse of that discretion. Denovchek v. Bd. of

Trumbull Cty. Commrs., 36 Ohio St.3d 14, 16, 520 N.E.2d 1362 (1988); Ayer, 119

Ohio App.3d at 575, 695 N.E.2d 1180.

{¶24} Civ.R. 75(A) provides that the rules of civil procedure apply in actions

for divorce and related proceedings except as modified by that rule. Consequently,

"[s]ummary judgment is not prohibited in divorce proceedings.” Zimmie v. Zimmie,

11 Ohio St.3d 94, 96, 464 N.E.2d 142 (1984). Summary judgment is appropriate if (1)

no genuine issue of material fact exists for trial, (2) the moving party is entitled to

judgment as a matter of law, and (3) reasonable minds can come to but one

conclusion and that conclusion is adverse to the nonmoving party, who is entitled to

have the evidence construed most strongly in his or her favor. Temple v. Wean

United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977); Greene v. Whiteside, 181

Ohio App.3d 253, 2009-Ohio-741, 908 N.E.2d 975, ¶ 23 (1st Dist.). We review

decisions on summary-judgment motions de novo. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996); Riverhills Healthcare, Inc. v. Guo, 1st

Dist. Hamilton No. C-100781, 2011-Ohio-4359, ¶ 12.

IV. The Trial Court Could Consider the 1981 Settlement Agreement

{¶25} Mary Jo first contends that the trial court’s decision to grant

summary judgment on the royalties issue was improper because the court could not

have relied on the 1981 settlement agreement. We disagree.

{¶26} When ruling on a motion for summary judgment, the trial court may

only review evidence properly submitted under Civ.R. 56(C). State ex rel. Boggs v.

Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94, 97, 647 N.E.2d 788

(1995); Deutsche Bank Natl. Trust Co. v. Boswell, 192 Ohio App.3d 374, 2011-Ohio-

9
 OHIO FIRST DISTRICT COURT OF APPEALS

673, 949 N.E.2d 96, ¶ 26 (1st Dist.). It provides that a court ruling on a motion for

summary judgment may consider “the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact.”

{¶27} Civ.R. 56(E) provides the proper procedure for introducing

evidentiary matter not specifically authorized by Civ.R. 56(C). It permits other types

of evidence if they are properly authenticated and referred to in a properly framed

affidavit. Deutsche Bank at ¶ 27. It also requires an affidavit to “set forth such facts

as would be admissible into evidence.” Tomlinson v. Cincinnati, 4 Ohio St.3d 66, 67-

68, 446 N.E.2d 454 (1983); Couch v. Bosma, 1st Dist. Hamilton No. C-960562, 1997

Ohio App. LEXIS 3456, *7-8 (Aug. 1, 1997).

{¶28} The settlement agreement was attached to the affidavit of William

Busemeyer, who was Rudolph’s attorney when the settlement agreement was signed.

He stated that he had negotiated the agreement on Rudolph’s behalf and that he had

witnessed Rudolph sign the agreement. Busemeyer had also signed the agreement as

Rudolph’s attorney. Thus, his affidavit was made on personal knowledge, and he was

competent to testify to the matters stated in his affidavit as required by Civ.R. 56(E).

Further, there was no dispute that Mary Jo had signed the agreement. She admitted

to signing it in her answers to interrogatories filed with the court and in the

pleadings. Therefore, the agreement was properly before the court.

{¶29} Next, Mary Jo argues that the trial court should not have granted

summary judgment based upon the 1981 settlement agreement because Rudolph

could not use it to collaterally attack or modify the divorce decree when it was never

made an order of the court. We agree that because the 1981 agreement was not made

an order of the court, it cannot be enforced in contempt.

10
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶30} The agreement did not modify the parties’ property division. Instead

it compromised and settled the issues raised in Mary Joe’s 1979 motion for

contempt. In that agreement, she released all claims against Rudolph related to

paragraph 9 of the separation agreement. But the agreement was a valid contract

between the parties, and Rudolph presented it, and the trial court properly

considered it, as a defense to Mary Joe’s contempt motion.

V. The Settlement Agreement was Clear and Unambiguous

{¶31} The settlement agreement, like the separation agreement, is a

contract subject to the same rules of interpretation as other contracts. Its

interpretation is generally a matter of law and the court’s primary objective is to give

effect to the parties’ intent, which can be found in the language they have chosen to

employ. Foster Wheeler Enviresponse, Inc. v. Franklin Cty. Convention Facilities

Auth., 78 Ohio St.3d 353, 361, 678 N.E.2d 519 (1997); Condit, 190 Ohio App.3d 634,

2010-Ohio-5202, 943 N.E.2d 1041, at ¶ 11. The writing will be read as a whole, and

the intent of each part will be gathered from a consideration of the whole. Foster

Wheeler at 351; M.G.A., Inc. v. Amelia Station, Ltd., 1st Dist. Hamilton No. C-

010606, 2002-Ohio-5091, ¶ 10. If the terms of an agreement are unambiguous, a

court must give the terms their plain, ordinary meanings, and it need not go beyond

the plain language of the agreement to determine the parties’ rights and obligations.

Aultman Hosp. Assn. v. Community Mut. Ins. Co., 46 Ohio St.3d 51, 53, 544 N.E.2d

920 (1989); Condit, 190 Ohio App.3d 634, 2010-Ohio-5202, 943 N.E.2d 1041, at ¶ 11.

{¶32} The settlement agreement stated that in exchange for a lump-sum

payment of $40,000 from Rudolph, Mary Jo agreed “to dismiss with prejudice the

pending court action against Rudolph F. Verderber for contempt of court, for failure

to make payments under Section nine (9) of the Separation Agreement incorporated

into the Decree of Divorce between the parties[.]” She further agreed to “release

11
 OHIO FIRST DISTRICT COURT OF APPEALS

Rudolph F. Verderber from any obligation under said Section nine (9).” Finally, the

agreement stated that “[s]ave and except as to the matters contained in this

Agreement, each of the parties do hereby forever release the other from any and all

claims, liabilities, causes of action, and all of the covenants, terms, conditions,

obligations as set forth or arising out of in [sic] Section nine (9) of the aforesaid

Separation Agreement.”

{¶33} The terms of the agreement are unambiguous. In exchange for a

payment of $40,000, Mary Jo agreed to release Rudolph from all claims under

paragraph 9 of the separation agreement. Consequently, after that time, Rudolph

had no obligation to pay Mary Jo any more royalties. Mary Jo has failed to establish

by clear and convincing evidence that Rudolph was in contempt. See Blazic, 2005-

Ohio-4417, at ¶ 20. Rudolph was entitled to judgment as a matter of law, and the

trial court did not err in granting summary judgment in his favor. We overrule Mary

Jo’s third, fourth and fifth assignments of error.

VI. Civ.R. 60(B) Motion

{¶34} In her sixth assignment of error, Mary Jo contends that the trial court

erred in overruling her Civ.R. 60(B)(5) motion for relief from judgment. She argues

that her motion was properly filed under Civ.R. 60(B)(5) because she showed that

Rudolph had concealed marital property and that she had filed her motion within a

reasonable time of discovering that concealment. This assignment of error is not

well taken.

{¶35} To prevail on a Civ.R. 60(B) motion for relief from judgment, the

moving party bears the burden to 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 the motion is timely

made. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351

12
 OHIO FIRST DISTRICT COURT OF APPEALS

N.E.2d 113 (1976), paragraph two of the syllabus; W2 Prop., LLC v. Haboush, 196

Ohio App.3d 194, 2011-Ohio-4231, 962 N.E.2d 858, ¶ 21 (1st Dist.). The decision

whether to grant relief from judgment lies within the trial court’s discretion. Rose

Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988); W2 Prop. at

¶ 21.

{¶36} Mary Jo filed her motion under Civ.R. 60(B)(5), which allows a court

to set aside a judgment for “any other reason justifying relief from judgment.” Civ.R.

60(B)(5) is intended as a catch-all provision to relieve a person from the unjust

operation of a judgment. But the grounds for invoking that provision must be

substantial, and it cannot be used as substitute for any of the more specific

provisions of Civ.R. 60(B). Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 448

N.E.2d 1365 (1983), paragraphs one and two of the syllabus; W2 Prop. at ¶ 27.

{¶37} In her motion, Mary Jo sought relief from the divorce decree

incorporating the separation agreement. Under paragraph 9 of the agreement, she

was entitled to one-third of the royalties from Challenge. She alleged that in March

of 2011, she had discovered that Communicate!, Rudolph’s follow-up to Challenge,

had been written during the marriage. She claimed that Rudolph had failed to

disclose Communicate! as marital property, had prevented her from discovering it,

and had denied her the right to one-third of royalties from Communicate!.

{¶38} Mary Jo relies on this court’s decision in In re Murphy, 10 Ohio

App.3d 134, 461 N.E.2d 910 (1st Dist.1983) in arguing that her motion for relief from

judgment was proper under Civ.R. 60(B)(5). In that case, we held that a party to a

dissolution could attack the decree under Civ.R. 60(B)(5) when numerous marital

assets were omitted from the decree. Id. at 137-138. We stated that “[t]he fatal

defect is noncompliance with the empowering statute, and the ‘reason’ for invoking

the trial court’s discretionary power to grant relief falls in clause (5).” Id. at 138.

13
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶39} We later distinguished Murphy in Miller v. Miller, 1st Dist. Hamilton

No. C-980892, 1999 Ohio App. LEXIS 4313 (Sept. 17, 1999). In that case, we stated

that although the parties had agreed to the property division, it involved a divorce

not a dissolution, “which was an integral part of our decision[.]” Id. at *7. “While an

agreement is an essential statutory element allowing the court to grant a decree of

dissolution, it is not required in a divorce case where the court may decide the

property division and other issues.” Id. at *7-8. Accord Boston v. Parks-Boston,

10th Dist. Franklin No. 02AP-1031, 2003-Ohio-5267, ¶ 29.

{¶40} Further, Mary Jo failed to present evidence, other than her own

speculation, showing that Communicate! had existed in any form prior to the end of

marriage. Rudolph, on the other hand, presented substantial evidence that

Communicate! did not exist at the time of the separation agreement or divorce

decree. The contract to write the book was not signed until months after the divorce

decree and stated that “[t]he Author will write for publication a work on basic

communication.” (Emphasis added.) Consequently, it was not an undisclosed asset.

Murphy is not dispositive, and Civ.R. 60(B)(5) does not apply.

{¶41} Mary Jo is really arguing that Rudolph defrauded her. Therefore, she

should have brought her motion under the more specific provision in Civ.R. 60(B)(3)

for fraud. She points out that the trial court mistakenly stated that she had claimed

that Rudolph had defrauded her regarding Challenge, but she had argued that he

had defrauded her regarding the time of authorship of Communicate!. Even so,

Mary Jo is still arguing fraud by Rudolph.

{¶42} Mary Jo has not alleged that Rudolph’s attorney or anyone connected

to the court had knowledge of the alleged fraud. A court can grant relief from

judgment under Civ.R. 60(B)(5) for fraud on the court. Civ.R. 60(B)(3) applies to

fraud by an adverse party. Coulson v. Coulson, 5 Ohio St.3d 12, 15, 448 N.E.2d 809

14
 OHIO FIRST DISTRICT COURT OF APPEALS

(1983); Miller, 1999 Ohio App. LEXIS 4313 at *8. Consequently, Mary Jo should

have sought relief from judgment under Civ.R. 60(B)(3), since she alleged fraud by

an adverse party, not fraud on the court.

{¶43} A motion seeking relief from judgment under Civ.R. 60(B)(3), unlike

Civ.R. 60(B)(5), must be filed within one year of the entry of judgment. Strack v.

Pelton, 70 Ohio St.3d 172, 175, 637 N.E.2d 914 (1994); In re Crabtree, 1st Dist.

Hamilton No. C-010290, 2002 Ohio App. LEXIS 1156, *9 (Mar. 15, 2002). Since

Mary Jo’s motion was not filed within one year of the divorce decree, it was not

timely filed. She argues that it was filed within one year of her discovery of the fraud.

She has not cited any authority and we find none that apply a “discovery rule” to the

express one-year deadline set forth in Civ.R. 60(B)(3). See In re Alexander, 92 Ohio

App.3d 190, 202, 634 N.E.2d 670 (8th Dist.1993).

{¶44} Further, to have a claim under Civ.R. 60(B)(3), the adverse party

must have prevented the complaining party from fully and fairly presenting his or

her claim or defense. U.S. Bank Natl. Assn. v. Marino, 5th Dist. Delaware No.

2001CAE11 0108, 2012-Ohio-1487, ¶ 15; Hardman v. Chiaramonte, 39 Ohio App.3d

9, 11, 528 N.E.2d 1270 (9th Dist.1987). The party asserting fraud has the burden of

proving it by clear and convincing evidence. U.S. Bank at ¶ 15; Hardman at 11.

{¶45} We agree with the trial court when it stated:

Wife has not asserted that Husband herein prevented her from having

a fair opportunity to litigate her claim to royalties. She participated in

litigation concerning royalties in the period 1979-1981 with the

assistance of counsel, and had the opportunity to pursue discovery. If

she chose not to do so thoroughly, that is not Husband’s fault.

{¶46} Consequently, we hold that the trial court did not err in denying Mary

Jo’s Civ.R. 60(B) motion. We overrule her sixth assignment of error.

15
 OHIO FIRST DISTRICT COURT OF APPEALS

VII. Constructive Trust

{¶47} In her second assignment of error, Mary Jo contends that the trial

court erred in denying her motion for a constructive trust. She argues that

paragraph 9 of the separation agreement relating to royalties created a trust

relationship where Rudolph held her entitlement to royalties for her benefit with a

duty to annually provide an account and a distribution. This assignment of error is

not well taken.

{¶48} A constructive trust is “a trust by operation of law which arises * * *

against one who, by fraud, actual or constructive, by duress or abuse of confidence *

* * or who in any way against equity and good conscience, either has obtained or

holds the legal right to property which he ought not, in equity and good conscience

hold and enjoy.” Cundall v. U.S. Bank, 122 Ohio St.3d 188, 2009-Ohio-2523, 909

N.E.2d 1244, ¶ 39, quoting Estate of Cowling v. Estate of Cowling, 109 Ohio St.3d

276, 2006-Ohio-2418, 847 N.E.2d 405, ¶ 18. It is an appropriate remedy against

unjust enrichment. It is usually invoked when property has been acquired by fraud,

but may also be used when it is inequitable that the property be retained by a certain

person even if it was not acquired by fraud. Ferguson v. Owens, 9 Ohio St.3d 223,

226, 459 N.E.2d 1293 (1984).

{¶49} In this case, the record does not show that Rudolph had acquired or

retained property under inequitable or improper circumstances. He and Mary Jo

reached an agreement in 1981 in which Mary Jo released her share of the royalties in

exchange for valid consideration. The parties negotiated the agreement with the

advice of counsel. Thirty years later, she is raising arguments that were available to

her in 1981. Under the circumstances, we cannot hold that the trial court erred in

failing to impose a constructive trust, and we overrule her second assignment of

error.

16
 OHIO FIRST DISTRICT COURT OF APPEALS

VIII. Claims against Third Parties

{¶50} Finally, in her seventh assignment of error, Mary Jo contends that the

trial court erred in dismissing her claims against Verderber Services and Kathleen.

Under Civ.R. 75(B), a third party may be joined as a defendant if that party

possesses, controls, or claims an interest in property at issue in a divorce action.

Davis v. Cincinnati Enquirer, 164 Ohio App.3d 36, 2005-Ohio-5719, 840 N.E.2d

1150, ¶ 14 (1st Dist.); Chrisman v. Chrisman, 12th Dist. Warren No. CA99-01-006,

2000 Ohio App. LEXIS 937, *5 (Mar. 13, 2000).

{¶51} Kathleen and Verderber Services were properly joined as parties since

they allegedly held the royalties to which Mary Jo claimed she was entitled. But

since she is not entitled to any of those royalties, her claims against them were

properly dismissed. Accordingly, we overrule Mary Jo’s seventh assignment of error.

IX. Summary

{¶52} In sum, we reverse that part of the trial court’s decision overruling

Mary Jo’s motion for contempt as it related to paragraph 9 of the separation

agreement, the will provision, and we remand the cause to the trial court to interpret

that provision, to determine if Rudolph is in contempt, and, if it finds he is in

contempt, to decide the remedy for contempt. We affirm the trial court’s judgment

in all other respects.

Judgment affirmed in part, reversed in part, and cause remanded.

C UNNINGHAM , P.J., and D E W INE , J., concur.

Please note:
The court has recorded its own entry this date.

17