Hussain v. Hussain

[Cite as Hussain v. Hussain, 2020-Ohio-531.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

JEREENA HUSSAIN, : CASE NO. CA2019-01-024

Appellee, : OPINION
2/18/2020
:
- vs -
:

MUSHTAQ HUSSAIN, :

Appellant. :

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DR14-01-0046

Bruce A. Hunter, 21 Reily Road, Cincinnati, Ohio 45215, for appellee

Nadeem Quraishi, 4938A Wunnenberg Way, West Chester, Ohio 45069, for appellant

M. POWELL, J.

{¶ 1} Appellant, Mushtaq Hussain ("Husband"), appeals a decision of the Butler

County Court of Common Pleas, Domestic Relations Division, reinstating his original child

support obligation and awarding attorney fees to appellee, Jereena Ameen ("Wife," fka

Jereena Hussain).

{¶ 2} The parties were divorced on June 11, 2015, after 22 years of marriage. At
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the time of the divorce, the parties had two children living at home, a 17-year-old son and

a 20-month-old daughter. The divorce decree awarded the Liberty Township, Butler

County, Ohio marital home (the "Liberty Township residence") to Husband, required the

parties to equally divide the marital portion of Husband's two retirement accounts pursuant

to a Qualified Domestic Relations Order ("QDRO"), and ordered Husband to pay $791.09

per month per child in child support. Husband's child support obligation was based upon

his annual income of $178,500 as a Procter & Gamble ("P&G") employee. At the time of

the divorce, Husband had nearly $900,000 in his P&G retirement accounts.

{¶ 3} In July 2015, Husband appealed from the final divorce decree, solely

challenging the trial court's determination that the parties were validly married in India

thereby rendering their marriage valid in Ohio. We affirmed the trial court's holding that the

parties were legally married. Hussain v. Hussain, 12th Dist. Butler No. CA2015-07-127,

2016-Ohio-3214.

{¶ 4} In December 2015, Husband requested that the Butler County Child Support

Enforcement Agency ("CSEA") conduct an administrative review of his child support

obligation. Husband, who was 51 years old at the time, had taken a voluntary separation

of employment from P&G in anticipation of the elimination of his position and claimed his

income had consequently decreased. Husband was last employed by P&G on June 30,

2015, and received a $178,500 lump-sum severance payment from P&G in July 2015. In

his request, Husband listed the Liberty Township residence as his address.

{¶ 5} Upon conducting an administrative review, the CSEA recommended that

Husband's child support obligation be significantly reduced, effective March 1, 2016. Wife

requested an administrative adjustment hearing. In May 2016, the CSEA hearing officer

affirmed the recommendation to significantly reduce Husband's child support obligation. In

so ruling, the hearing officer determined that Husband's severance pay was a "one-time

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payment" akin to a lump-sum lottery prize and should not be considered as income to

Husband.

{¶ 6} Wife requested a judicial mistake-of-fact hearing in the trial court. In July

2016, Husband filed a notice of intent to relocate to India, effective September 1, 2016, and

provided his address in India. Thereafter, he successfully moved to continue the mistake-

of-fact hearing twice. The hearing was ultimately held before a magistrate in December

2016. Both parties were present. Wife was represented by counsel; Husband was pro se.1

On January 24, 2017, the magistrate issued a decision ("Magistrate's Decision") adopting

the CSEA's recommendation that Husband's child support obligation be significantly

reduced.

{¶ 7} Wife filed objections to the Magistrate's Decision on February 7, 2017, and

supplemental objections on March 20, 2017. The former were served upon Husband at his

address in India by regular mail; the latter were served at his address in India by regular

mail and email. The trial court conducted a hearing on the objections on March 20, 2017

("child support hearing"). Wife was present, represented by counsel. It is unclear whether

Husband was present.2 By decision filed on May 18, 2017 (the "Child Support Decision"),

the trial court sustained Wife's objections, overruled the Magistrate's Decision, and

reinstated the original child support obligation of $791.09 per month per child. In so ruling,

the trial court rejected the CSEA's determination that Husband's severance pay was akin

1. In the interim, the parties' son became emancipated for child support purposes, having turned 18 years
old and graduated from high school, and Husband's child support obligation for the son was terminated.

2. The trial court's Child Support Decision states that Wife was present and represented by counsel at the
child support hearing and that Husband "was pro se." On appeal and below, Husband argued he was not
properly served with Wife's objections in India and as a result did not attend the hearing. No transcript of the
child support hearing has been filed with the record on appeal. In one of his filings, Husband attached what
purports to be the first page of a transcript of the child support hearing, indicating Husband was not present
at the beginning of the hearing. In 2018, the trial court conducted a hearing on several motions of the parties,
including a motion for relief from judgment filed by Husband on the ground he was not properly served with
notice of the child support hearing. In denying Husband's motion, the trial court did not address whether
Husband was present at the child support hearing.
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to lottery winnings and therefore excluded from gross income, and noted that Husband

continued to receive deposits from P&G and be covered by P&G's health insurance plan

through June 2016. Importantly, the trial court found that Husband "received one year of

severance from his former employer representing his salary through June 30, 2016; his

income through June 30, 2016 continued to be $178,500."

{¶ 8} In April 2018, Husband moved for relief from and to set aside the trial court's

Child Support Decision, claiming that he lived in India and was not properly served with

Wife's objections and notice of the child support hearing, and that the trial court improperly

found that his income in 2016 was $178,500 when in fact he received the $178,500

severance pay during the 2015 calendar year. Wife moved to file QDROs, find Husband in

contempt for his ongoing failure to cooperate with the division of his P&G retirement

accounts, and for attorney fees. On August 30, 2018, the trial court held a hearing on these

and other motions filed by the parties. At the beginning of the hearing, the parties reached

an agreement regarding the execution of QDROs dividing Husband's two P&G retirement

accounts. This issue had been languishing for more than three years since the divorce

decree was filed in June 2015. Wife was allocated 48 percent of one retirement account

and 45 percent of the other.

{¶ 9} By decision filed on August 30, 2018, the trial court denied Husband's motion

for relief from and to set aside its Child Support Decision as follows:

The record reflects that [Husband] did file the notice of intent to
relocate to his address in India on July 10, 2016. [Husband]
testified that the court's 5/18/17 Decision was sent to the [Liberty
Township residence] address. [Husband] maintains residences
at both addresses.

[Husband] had already submitted to the court's jurisdiction and
was properly served with [Wife's] objection at the address on
record.

{¶ 10} In that same decision, the trial court noted that Wife's motion for attorney fees

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related to the QDROs would be heard at a later date.3 A hearing on Wife's motion was held

in December 2018. On January 2, 2019, the trial court granted Wife's motion and awarded

her $13,636.59 in attorney fees. The trial court found that given the parties' disparity of

income and earning ability, Husband's ongoing reluctance to divide the retirement accounts,

and the ongoing litigation regarding this issue, an award of attorney fees was equitable and

appropriate and Wife's "requested attorney fees in the amount of $13,636.59 is reasonable

and appropriate."

{¶ 11} Husband now appeals, raising four assignments of error.

{¶ 12} Assignment of Error No. 1:

{¶ 13} THE TRIAL COURT ERRED IN FINDING THAT HUSBAND WAS

PROPERLY SERVED WITH OBJECTIONS, NOTICE OF THE 5/18/17 HEARING,

DETERMINING THAT HE WAS PRESENT AT THE HEARING ON MAY 18, 2017[,] AND

THAT HE WAS PROPERLY SERVED WITH THE DECISION FROM MAY 18, 2017. (sic)

{¶ 14} Husband generally argues that the trial court erred in denying his motions for

relief from judgment and to set aside the trial court's Child Support Decision upon finding

he "was properly served with [Wife's] objection at the address on record." Specifically,

Husband asserts that the Child Support Decision is void because (1) he was improperly

served with Wife's objections to the Magistrate's Decision at his address in India by ordinary

mail, (2) as a result, he did not attend the child support hearing and was therefore deprived

of the opportunity to be heard, and (3) he was improperly served with the trial court's Child

Support Decision at the Liberty Township residence. Because Husband resides in India,

he asserts that Civ.R. 4.5(A) requires service pursuant to the Hague Convention on the

3. Husband appealed the trial court's August 30, 2018 decision. On November 6, 2018, we dismissed the
appeal for want of a final appealable order. Hussain v. Hussain, 12th Dist. Butler No. CA2018-09-191 (Nov.
6, 2018) (Entry of Dismissal).
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Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters

("Hague Service Convention").

{¶ 15} A valid court judgment requires both proper service under the applicable Ohio

rules and adequate notice. In re A.G., 4th Dist. Athens No. 14CA28, 2014-Ohio-5014, ¶

14. Service of process is consistent with due process standards where it is reasonably

calculated, under the circumstances, to give interested parties notice of a pending action

and an opportunity to appear and present their objections. Motorists Mut. Ins. Co. v.

Roberts, 12th Dist. Warren No. CA2013-09-089, 2014-Ohio-1893, ¶ 32; Samson Sales, Inc.

v. Honeywell, Inc., 66 Ohio St.2d 290, 293 (1981).

{¶ 16} Civ.R. 4.5 governs service of process on a party in a foreign country. As

pertinent to Husband's argument, Civ.R. 4.5(A) provides that

When Civ.R. 4.3 or Civ.R. 4.4 or both allow service upon a
person outside this state and service is to be effected in a
foreign country, service of the summons and complaint shall be
made as provided in this rule.

(A)Hague Convention signatory.
If the foreign country is a signatory to the Hague Convention on
the Service Abroad of Judicial and Extrajudicial Documents in
Civil or Commercial Matters, service shall be pursuant to a
method allowed by the Articles of that Convention, including any
method allowed by Article 8 or Article 10 to which the foreign
country has not objected in accordance with Article 21.

{¶ 17} The Hague Service Convention is a multilateral treaty "intended to provide a

simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions

would receive actual and timely notice of suit, and to facilitate proof of service abroad."

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 108 S.Ct. 2104, 2107 (1988).

The United States and India are both signatory countries. The Hague Service Convention

requires signatory countries to establish a central authority to receive requests for service

of documents from other countries, and to serve those documents by methods compatible

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with the internal laws of the receiving state. Id.; Article 5 of the Convention. Service through

a country's central authority is the principal means of service under the Hague Service

Convention. FTC v. Repair All PC, LLC, N.D.Ohio No. 1:17 CV 869, 2017 U.S. Dist. LEXIS

83173, *10 (May 31, 2017). Article 10 of the Convention also allows service "by postal

channels, directly to persons abroad" as well as "directly through the judicial officers" of the

recipient-nation as long as the recipient-nation has not objected to the specific alternative

means of service used. Id. at *10-11. In signing the Convention, India objected to the

methods of service provided in Article 10 of the Convention. Id. at *11; Venkatesan v.

Venkatesan, Conn.Super. No. CV095028278S, 2009 Conn. Super. LEXIS 1941, *6 (June

25, 2009).

{¶ 18} Upon reviewing the applicable Ohio Rules of Civil Procedure, we find that

Husband's invocation of the Hague Service Convention regarding Wife's objections and the

trial court's Child Support Decision is misplaced and that service of motions, objections, and

judicial decisions upon a person in a foreign country is governed by Civ.R. 5, and not by

Civ.R. 4.5.

{¶ 19} Civ.R. 4.5 sets forth the rules for service upon an individual in a foreign

country. If the foreign country is a signatory to the Hague Service Convention, Civ.R. 4.5(A)

requires that service be made in compliance with the Convention. By its plain terms,

however, Civ.R. 4.5 only applies to "service of the summons and complaint." By contrast,

Civ.R. 5 specifically governs the "[s]ervice and filing of pleadings and other papers

subsequent to the original complaint," and does not mention the Hague Service Convention

or provide special procedural requirements for international service. Thus, the Hague

Service Convention only applies to the initial service of process, namely, the summons and

original complaint. Following service of the summons and complaint, parties must serve

future pleadings and papers, including motions and objections, under the less stringent

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standards of Civ.R. 5.

{¶ 20} Several federal courts have reached the same conclusion when analyzing

service of process upon an individual in a foreign country under Fed.R.Civ.P. 4 and

Fed.R.Civ.P. 5. While these cases are not controlling on this court, we find their reasoning

to be persuasive and therefore apply it. For instance, relying upon the United States

Supreme Court's finding that Article 1 of the Hague Service Convention "refers to service

of process in the technical sense" in Schlunk, a New York federal district court held that

[T]he Hague Service Convention only applies to the initial
service of process, namely the summons, not subsequent
judicial documents. * * * 1 B. Ristau, International Judicial
Assistance (Civil and Commercial) §4-2 (2000 revision)
(recognizing that the Hague Service Convention applies only
where there is a need to make "formal delivery" of a judicial
document "to charge [the recipient] with notice of the institution
of a legal proceeding.") The structure of the Federal Rules of
Civil Procedure supports this distinction. Rule 4(f) sets forth the
rules for service of a summons outside the United States and
expressly refers to the Hague Service Convention. Rule 5,
however, addresses the service of subsequent judicial
documents, including written motions, and does not mention the
Hague Service Convention or provide special procedural
requirements for international service. Apart from those judicial
documents which must be served pursuant to Rule 4, Plaintiff
need only serve judicial documents, including the present
motion, on Defendant pursuant to Rule 5 despite Defendant's
foreign residence.

SEC v. Credit Bancorp, Ltd., S.D.N.Y. No. 99 Civ. 11395, 2011 U.S. Dist. LEXIS

14797, *10-11 (Feb. 14, 2011), citing Schlunk, 108 S.Ct. at 2018. See also DJL

Mtge. Capital v. Roland, D.V.I. No. 2013-0010, 2015 U.S. Dist. LEXIS 88064 (July

1, 2015); Trade Well Internatl. v. United Cent. Bank, W.D.Wis. No. 12-cv-701-wmc,

2014 U.S. Dist. LEXIS 131223 (Sep. 12, 2014); Kozaczek v. New York Higher Edn.

Servs. Corp., D.Vt. No. 1:13-cv-00074-jgm, 2014 U.S. Dist. LEXIS 70605 (May 20,

2014); and S&S Mach. Corp. v. Wuhan Heavy Duty Mach. Tool Group Co., E.D.N.Y.

No. 07-CV-4909, 2012 U.S. Dist. LEXIS 38608 (Jan. 13, 2012).

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{¶ 21} Turning now to Civ.R. 5, the rule allows service of pleadings and other papers

subsequent to the original complaint by "mailing [the document] to the person's last known

address by United States mail, in which event service is complete upon mailing," and by

"sending it by electronic means to a facsimile number or e-mail address" provided by the

party to be served. Civ.R. 5(B)(2) (c) and (f). As stated above, on July 18, 2016, Husband

filed a notice of intent to relocate in India, effective September 1, 2016. The record further

indicates that Husband and Wife's counsel subsequently communicated via emails.

{¶ 22} Husband's address in India was set forth in the caption of Wife's objections

and supplemental objections. Wife's objections were served upon Husband at his address

in India by ordinary United States mail; Wife's supplemental objections were served at his

address in India by ordinary United States mail and email. Wife's objections were therefore

mailed to Husband's last known address and were properly served upon Husband in

compliance with Civ.R. 5(B)(2)(c). The supplemental objections were likewise properly

served upon Husband at his last known address via email in compliance with Civ.R.

5(B)(2)(c) and (f).

{¶ 23} Both Wife's objections and supplemental objections provided notice to

Husband that a hearing would be held on the objections on March 20, 2017. While the

supplemental objections were filed on the day of the hearing, Wife's objections were filed

on February 7, 2017, thereby providing Husband an opportunity to appear and present his

objections, or, as he has done on several occasions, move to continue the hearing to a later

date when he would be in the United States. Husband, however, failed to so move the trial

court. Husband further did not establish that service was made to an address in India where

it would not be reasonably calculated to reach him. Service of process therefore comported

with due process requirements. Motorists Mut. Ins. Co., 2014-Ohio-1893 at ¶ 32; Samson

Sales, Inc., 66 Ohio St.2d at 293.

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{¶ 24} Regarding the mailing of the trial court's Child Support Decision to the Liberty

Township residence, we find it was improperly served there as Husband has relocated to

India and has been domiciled there effective September 1, 2016, as indicated by his notice

of intent to relocate to India. However, given the fact we are addressing Husband's child

support argument on the merits in his second assignment of error and Husband's testimony

in a subsequent hearing that he received the trial court's Child Support Decision when he

briefly stayed in the Liberty Township residence when he came to Ohio in August or

September 2017, we find no prejudice.

{¶ 25} In light of the foregoing, Husband's first assignment of error is overruled.

{¶ 26} Assignment of Error No. 2:

{¶ 27} THE TRIAL COURT ERRED IN DETERMINING THAT HUSBAND'S

INCOME IN 2016 WAS $178,[5]00.

{¶ 28} Husband argues the trial court erred in finding that the $178,500 lump-sum

severance pay he received in 2015 was his gross income in 2016 for child support

purposes. At the time of the June 2015 divorce decree, Husband's annual income was

$178,500. His last day of employment with P&G was on June 30, 2015; he received the

$178,500 severance pay from P&G in July 2015. In overruling the Magistrate's Decision

and reinstating the original child support obligation of $791.09 per month per child, the trial

court found that Husband "received one year of severance from his former employer

representing his salary through June 30, 2016; his income through June 30, 2016 continued

to be $178,500."

{¶ 29} For child support calculation purposes, "gross income" is defined as "the total

of all earned and unearned income from all sources during a calendar year, whether or not

the income is taxable, and includes income from salaries, wages, overtime pay, and * * *

severance pay[.]" (Emphasis added.) R.C. 3119.01(C)(12). Pursuant to the plain language

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of the statute, "gross income" is "all income from all sources received by a parent during a

calendar year[.]" Larkin v. Larkin, 2d Dist. Greene Nos. 2015-CA-07 and 2015-CA-21,

2016-Ohio-1563, ¶ 20. In other words, a child support obligor's "gross income" is based

upon the calendar year in which it was received.

{¶ 30} The record shows that during the August 30, 2018 hearing, Wife introduced

several exhibits, including Husband's W-2 statements from P&G for 2015 and 2016 and his

year-end pay stubs for 2013 through 2016, showing Husband's annual income from P&G

for each of those years. These exhibits confirmed that Husband received his $178,500

severance pay in 2015 and that he received $16,378.14 in income from P&G in 2016.

However, this documentation of Husband's income is not referred to in any of the

administrative or judicial decisions, including the trial court's Child Support Decision. Thus,

we must assume that this information was not available during those administrative and

judicial proceedings and was not considered in determining Husband's income for child

support purposes. We further note that there are no transcripts of the administrative

proceedings or the trial court's child support hearing, and that the CSEA did not detail the

information it relied upon in recommending that Husband's child support obligation be

significantly reduced.

{¶ 31} Husband's separation agreement with P&G, which was considered by the trial

court in its Child Support Decision, plainly indicates that Husband received his severance

pay as a lump sum in 2015:

As soon as administratively practical after your Last Day of
Employment, P&G will provide you with a Separation Payment
of $178,500.00 less legally required withholdings and
deductions. In no event will payment be made before expiration
of the seven-day revocation period discussed below or later
than the March 15th of the year following the year which
includes your last day of employment.

{¶ 32} Additionally, in his May 2016 administrative decision, the CSEA hearing

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officer noted Husband's testimony that "his last day of official employment was June 30,

2015[,] and he accepted a one time severance award in conjunction with his termination in

the gross amount of $178,500 which he received in July 2015." The CSEA hearing officer

further found that "the severance payout appears to be a one time payment[.]"

{¶ 33} Based upon the foregoing, we find that the trial court erred in prorating the

$178,500 severance pay Husband received in 2015 through the first half of 2016 and

calculating Husband's child support obligation based upon that extrapolation. We therefore

reverse the trial court's determination that Husband's "gross income" was $178,500 through

June 30, 2016, and remand the matter for the trial court to redetermine Husband's child

support obligation.

{¶ 34} Husband's second assignment of error is sustained.

{¶ 35} Assignment of Error No. 3:

{¶ 36} THE TRIAL COURT ERRED IN AWARDING WIFE ALMOST $14,000 IN

ATTORNEY FEES FOR PREPARATION OF THE QDROS.

{¶ 37} Husband argues the trial court erred in awarding Wife $13,636.59 in attorney

fees for the preparation of the QDROs. Husband asserts the amount awarded is excessive

because (1) all relevant information needed to prepare the QDROs was known at the time

of the final divorce hearing in October 2014, (2) Wife's former counsel had successfully

served subpoenas upon P&G and received responses by February 2017, yet Wife's new

counsel issued new and duplicative subpoenas in the summer of 2018, and (3) actions

taken by P&G to quash the subpoenas cannot be attributed to him.4 Husband does not

challenge the reasonableness of the hourly rate charged by Wife's counsel.

4. Husband further challenges the award of attorney fees, arguing he was not found in contempt regarding
the QDROs. The record refutes such assertion. In any event, a trial court has the authority to award a spouse
attorney fees even in the absence of finding the other spouse in contempt. Cirino v. Cirino, 9th Dist. Lorain
No. 11CA009959, 2011-Ohio-6332, ¶ 15.
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{¶ 38} "An award of attorney fees is within the sound discretion of the trial court."

Lightfield v. Lightfield, 12th Dist. Warren No. CA2017-11-164, 2018-Ohio-4383, ¶ 26. A trial

court's decision to award attorney fees will be reversed only if it amounts to an abuse of

discretion. Id.

{¶ 39} The trial court awarded Wife attorney fees in accordance with R.C.

3105.73(B), which provides in relevant part, "In any post-decree motion or proceeding that

arises out of an action for divorce, or an appeal of that motion or proceeding, the court may

award all or part of reasonable attorney's fees and litigation expenses to either party if the

court finds the award equitable." "In determining whether an award is equitable, the court

may consider the parties' income, the conduct of the parties, and any other relevant factors

the court deems appropriate, but it may not consider the parties' assets." Id.; Lightfield at

¶ 27.

{¶ 40} The record indicates that following the October 2014 final divorce hearing, the

parties placed detailed stipulations on the record regarding their financial accounts,

including Husband's two P&G retirement accounts. However, neither the stipulations nor a

transcript of the October 2014 hearing are in the record. The June 2015 divorce decree

required Wife's counsel to prepare the QDROs and Husband to cooperate with and facilitate

the preparation of the QDROs, and reserved jurisdiction to award costs and attorney fees

against a noncomplying party.

{¶ 41} In July 2016, Husband filed a motion for relief from a previous judgment in

which he requested that the trial court "assign" the P&G retirement accounts to him because

they belonged to him pursuant to India Muslim Law. When the trial court denied Husband's

motion in September 2016, his P&G retirement accounts had still not been divided. He had,

however, withdrawn over $247,000 from one of the accounts in early 2016. Because

Husband asserted a premarital interest in the accounts, the parties were ordered to

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"cooperate with any valuation needed to effect the equal division of the marital portion of

the retirement accounts." Husband was further ordered to "cooperate with an inquiry as to

a valuation." In a December 20, 2016 contempt order, the trial court ordered Husband to

"meet with a representative of P&G no later than 12/28/16 to obtain documentation of his

start date, separation date, and any other statements to effectuate an equitable division" of

the retirement accounts. The trial court further ordered Husband to appear for review of

sanctions nine days later.

{¶ 42} On December 29, 2016, the trial court made the following findings regarding

Husband's failure to comply and cooperate with effecting the division of his retirement

accounts:

[Husband] provided only two recent statements, and a self
generated spreadsheet for the division of the two P&G
retirement accounts. He has not complied. [Husband]
steadfastly maintains that [Wife] is only entitled to the
retirements that accrued while the parties lived in Ohio.

However, a remedy exists for this information.

[Wife's counsel] shall subpoena the records from the Plan
Administrator(s) for both accounts from the date of marriage
through the date of separation, so that [QDROs] can be drafted.

[Husband] failed to comply and cooperate with obtaining these
records. He did not even meet with his employer until 12/28/16.
[Wife] is given leave to submit a motion for attorney fees for the
subpoena and review of the records.

{¶ 43} In February 2017, Wife's counsel subpoenaed records from P&G regarding

Husband's retirement accounts. Despite these requirements and subpoenas, no QDROs

had been filed as of January 2018 when Wife retained new counsel. On April 13, 2018,

Wife's new counsel moved to file the QDROs, find Husband in contempt for his ongoing

failure to cooperate with the division of his P&G retirement accounts, and for attorney fees.

In July 2018, Wife's counsel issued subpoenas to P&G. The QDROs were ultimately

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executed on August 30, 2018, and a hearing on Wife's motion for attorney fees was held

on December 27, 2018. Both parties submitted exhibits. Wife also presented expert

witness testimony regarding the reasonableness and necessity of Wife's attorney fees, the

impact of Husband's "obstreperous" conduct, and the benefits obtained on Wife's behalf.

{¶ 44} A thorough review of the record shows that Husband continued to impede and

delay the required division of his retirement accounts in 2018. In August 2018 alone,

Husband went to great efforts to frustrate P&G's response to the subpoenas while at the

same time he refused to stipulate to the admissibility of his retirement account records.

Specifically, Husband (1) requested that the trial court not divide his retirement accounts at

all in order to make the property division more equitable, (2) complained in writing to P&G

about the company's production of his retirement account statements in response to Wife's

subpoenas, (3) demanded that P&G retrieve all subpoena responses provided to Wife since

February 2017, (4) demanded that P&G not further respond to subpoenas unless they were

served pursuant to the Hague Service Convention and "verified and confirmed by [Husband]

with a written notification," (5) filed a memorandum opposing Wife's subpoenas in the trial

court, and (6) moved to quash Wife's subpoenas.

{¶ 45} Notwithstanding the various arguments advanced by Husband in support of

his conduct, there was no reasonable basis for him to oppose Wife's subpoenas or the

admissibility of his retirement account statements. For example, despite Husband's long-

held assertion he had premarital interest in the retirement accounts, one exhibit plainly

showed he did not participate in the plans until seven years after the parties were married.

Because Husband refused to admit or stipulate to the admissibility of his retirement account

records, Wife's counsel was required to subpoena P&G witnesses and otherwise prepare

for the contempt trial regarding Husband's failure to cooperate with the division of his

retirement accounts set forth for August 30, 2018, over three years after the filing of the

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divorce decree ordering the division.

{¶ 46} Given Husband's opposition and interference with what should have been a

relatively simple discovery process and his overall obstruction in facilitating the execution

of the QDROs, thereby resulting in additional attorney services and unnecessary incurring

of attorney fees by Wife, we find that the trial court did not abuse its discretion in ordering

Husband to pay Wife $13,636.59 in attorney fees. See Dragon v. Dragon, 11th Dist.

Ashtabula Nos. 2009-A-0058 and 2010-A-0005, 2010-Ohio-4694.

{¶ 47} Husband's third assignment of error is overruled.

{¶ 48} Assignment of Error No. 4:

{¶ 49} THE TRIAL COURT ERRED IN DENYING HUSBAND'S MOTION FOR

RELIEF FROM JUDGMENT REGARDING INEQUITABLE DISTRIBUTION OF ASSETS

AND DEBTS.

{¶ 50} During the parties' marriage, Husband entered into two business loan

agreements in India for approximately $203,417, without Wife's knowledge or consent. The

divorce decree awarded the business loans to Husband as his "non-marital property and

separate debt." The decree further provided that the parties would equally divide the marital

portion of Husband's two P&G retirement accounts. On August 21, 2018, three years after

the divorce decree, Husband moved for relief from the divorce decree pursuant to Civ.R.

60(B)(4) and (5). Husband argued that (1) Wife and her brother had breached Ohio Civil

Rules and Indian civil and statutory laws, (2) there were repetitive patterns of judicial bias,

and (3) the property division was inequitable because Wife was awarded disproportionately

higher assets and no debts whereas he was awarded 34 percent less in financial assets

and was further ordered to pay spousal and child support as well the children's college and

medical expenses. On August 30, 2018, following a hearing on this and other motions, the

trial court denied Husband's Civ.R. 60(B) motion, finding that the motion was not filed in a

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timely manner and that Husband failed to provide sufficient, credible evidence to support

setting aside the divorce decree. That same day, the parties reached an agreement

regarding the specific division of Husband's P&G retirement accounts and executed the

QDROs.

{¶ 51} On appeal, Husband argues the trial court erred in denying his Civ.R. 60(B)

motion. Husband asserts that while the P&G retirement accounts were equitably divided,

the overall division of marital assets is no longer equitable because "pursuant to the Divorce

Decree, Husband received a $203,417 liability with no corresponding asset, or

approximately 33% less than Wife."

{¶ 52} A trial court may "relieve a party from a final judgment, order or proceedings"

when it is no longer equitable that the judgment should have prospective application, or for

any other reason justifying relief from the judgment. Civ.R. 60(B)(4) and (5). To prevail on

a Civ.R. 60(B) motion, the moving party must demonstrate that (1) he has a meritorious

defense or claim to present if relief is granted, (2) he 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 Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146

(1976), paragraph two of the syllabus. Failure to meet any one of these three factors is

fatal, for all three must be satisfied in order to gain relief. Scrimizzi v. Scrimizzi, 12th Dist.

Warren No. CA2018-11-131, 2019-Ohio-2793, ¶ 51.

{¶ 53} "For a change in circumstances that results in an inequitable burden to be a

basis for a Civ.R. 60(B)(4) motion, the circumstances must have been unforeseeable at the

time of entry of the judgment." Bowman v. Bowman, 12th Dist. Warren No. CA98-06-070,

1999 Ohio App. LEXIS 49, *6 (Jan. 11, 1999), citing Knapp v. Knapp, 24 Ohio St.3d 141,

146 (1986). The grounds for invoking Civ.R. 60(B)(5) must be substantial and relief is

generally to be granted only in unusual or extraordinary circumstances. Bowman at *6;

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Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 66 (1983). The decision to grant or

deny a Civ.R. 60(B) motion lies within the trial court's discretion, and the decision will be

reversed only for an abuse of discretion. Scrimizzi at ¶ 51.

{¶ 54} We find that the trial court did not abuse its discretion in denying Husband's

Civ.R. 60(B) motion to set aside the divorce decree and property division. We first note that

Husband presented no evidence to justify filing his motion more than three years after the

divorce decree was filed. Moreover, although he was fully cognizant of his support

obligations and the property division set forth in the divorce decree, including its award of

the business loans to him, Husband nevertheless agreed to the specific division of his P&G

retirement accounts and the execution of the QDROs a week after filing his Civ.R. 60(B)

motion. Civ.R. 60(B)(4) "was designed to provide relief to those who have been

prospectively subjected to circumstances which they had no opportunity to foresee or

control." Knapp at 146. Civ.R. 60(B)(4) was not designed to relieve parties of the

consequences of their voluntary, deliberate choices. Id. at 145. The circumstances were

clearly not unforeseeable as Husband had an opportunity to control the terms of the divorce

decree. Nor are the circumstances sufficiently extraordinary or unusual to warrant setting

aside the decree under Civ.R. 60(B)(5).

{¶ 55} Furthermore, it is well established that a Civ.R. 60(B) motion cannot be used

as a substitute for filing a direct appeal and the doctrine of res judicata will apply to such

motion. Allen v. Allen, 5th Dist. Muskingum No. CT2013-0015, 2013-Ohio-2729, ¶ 4. In

July 2015, Husband appealed from the final divorce decree, challenging the trial court's

determination that the parties were validly married in India thereby rendering their marriage

valid in Ohio. Any argument regarding the property division could have been raised in the

alternative in the direct appeal, but was not. Having failed to raise such argument in the

direct appeal of the divorce decree, Husband is now barred by the doctrine of res judicata.

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Id.; Premier v. Premier, 5th Dist. Stark No. 2015CA00030, 2016-Ohio-673, ¶ 55.

{¶ 56} Husband's fourth assignment of error is overruled.

{¶ 57} Judgment affirmed in part, reversed in part, and remanded for further

proceedings.

RINGLAND, P.J., and PIPER, J., concur.

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