Bloom v. Bloom

[Cite as Bloom v. Bloom, 2020-Ohio-4107.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

TED EUGENE BLOOM, : OPINION

Plaintiff-Appellant/ :
Cross-Appellee,
CASE NOS. 2019-T-0078
- vs - : 2019-T-0080

GINA MARIE BLOOM, :

Defendant-Appellee/ :
Cross-Appellant.

Civil Appeals from the Trumbull County Court of Common Pleas, Domestic Relations
Division, Case No. 2017 DR 00183.

Judgment: Affirmed.

Martin F. White, Martin F. White, Co., L.P.A., 156 Park Avenue, N.E., P.O. Box 1150,
Warren, Ohio 44482-1150 (For Plaintiff-Appellant/Cross-Appellee).

Charles E. Dunlap, 7330 Market Street, Youngstown, Ohio 44512, and Christopher A.
Maruca and Anthony P. Celo, The Maruca Law Firm, LLC, 201 East Commerce Street,
Suite 316, Youngstown, Ohio 44503 (For Defendant-Appellee/Cross Appellant).

MARY JANE TRAPP, J.

{¶1} Appellant/cross-appellee, Ted Eugene Bloom (“Mr. Bloom”), appeals the

judgment of the Trumbull County Court of Common Pleas, Domestic Relations Division,

denying his motion for relief from judgment pursuant to Civ.R. 60(A) that alleged the

existence of a clerical mistake in the divorce decree involving Mr. Bloom and

appellee/cross-appellant, Gina Marie Bloom (“Ms. Bloom”).
 {¶2} Ms. Bloom appeals the trial court’s failure to grant her request for attorney

fees for Mr. Bloom’s alleged frivolous conduct in filing the motion.

{¶3} After a careful review of the record and pertinent law, we find as follows:

{¶4} (1) The trial court did not abuse its discretion in denying Mr. Bloom’s motion

for relief from judgment pursuant to Civ.R. 60(A) because Mr. Bloom did not establish that

the trial court made a “clerical mistake” in the divorce decree. Any mistake on the trial

court’s part would constitute a mistake of fact based on an erroneous evaluation of the

trial evidence. Therefore, the alterations that Mr. Bloom requested would require legal

decisions and judgments based on the record, not merely the correction of mechanical

mistakes.

{¶5} (2) The trial court did not err in failing to grant Ms. Bloom’s request for

attorney’s fees for alleged frivolous conduct because her request was not set forth in a

formal, proper motion pursuant to Civ.R. 7(B)(1).

{¶6} Thus, we affirm the judgment of the Trumbull County Court of Common

Pleas, Domestic Relations Division.

Substantive and Procedural History

{¶7} The underlying matter involves the parties’ contested divorce. The matter

proceeded to trial over 20 separate days during September through December of 2018

to address Mr. Bloom’s complex financial and business interests.

Relevant Trial Evidence

{¶8} The parties disputed whether some of Mr. Blooms financial assets

constituted marital assets. Relevant here are (1) Bloom Land Company, LLC (“Bloom

Land”), a limited liability company of which Mr. Bloom was the sole member; and (2) a

loan to a company known as Gearmar (the “Gearmar loan”).

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 {¶9} Mr. Bloom retained Kelly Carrier, CPA, from Hill, Barth King. Ms. Carrier

testified that Bloom Land was formed to hold title to certain real estate used in conjunction

with one of Mr. Bloom’s business ventures. She opined that the fair market value of

Bloom Land as of August 13, 2018 was $802,421. She testified that Bloom Land’s net

assets included a note receivable from Gearmar in the amount of $500,000.

{¶10} Ms. Bloom’s retained Gennaro Ricciardi, CPA, as an expert, and he testified

that he had no disagreement with Ms. Carrier’s valuation of Bloom Land.

{¶11} Ms. Bloom introduced a personal financial statement that Mr. Bloom

prepared for his bank in 2018. A schedule to the financial statement indicated that

Gearmar owed $750,000 to Mr. Bloom in his personal capacity.

{¶12} Mr. Bloom also presented the testimony of Paul Fridley, CPA, the chief

financial officer of one of Mr. Bloom’s business ventures who also handles the financial

aspects, management, and operations of Mr. Bloom’s affiliated businesses. He testified

that Mr. Bloom incorrectly listed the Gearmar loan as $750,000 on the personal financial

statement. According to Mr. Fridley, a $500,000 portion of that note was included in the

value of Bloom Land, leaving a balance of $250,000.

Judgment Entry/Decree of Divorce

{¶13} On December 31, 2018, the trial court issued a 94-page “Judgment Entry

Final Decree of Divorce” containing detailed findings of fact and conclusions of law.

{¶14} Within finding of fact no. 10(b), the trial court analyzed the evidence

regarding Bloom Land, including the testimony of Ms. Carrier and Mr. Ricciardi. The trial

court noted Ms. Carrier’s testimony that Bloom Land’s assets included “notes receivable,”

but the trial court did not identify them. Within this finding of fact and in conclusion of law

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no. 15, the trial court determined that the value of Bloom Land was $802,421 and that it

was a marital asset.

{¶15} In finding of fact no. 25, the trial court addressed the Gearmar loan. The

trial court noted testimony regarding the owners of the Gearmar business entity and

monthly payments to Mr. Bloom. It did not reference Bloom Land or Mr. Fridley’s

testimony regarding alleged double counting. In this finding of fact and in conclusion of

law no. 30, the trial court determined that Gearmar owed “Plaintiff (Incredible Solutions)”

the sum of $750,000 and that it was a marital asset. Incredible Solutions, Inc. is a

business entity owned by Mr. Bloom that resulted from the merger of three of his business

entities.

{¶16} In conclusion of law no. 33, the trial court awarded Mr. Bloom certain marital

assets and liabilities, including Bloom Land, the value of which the trial court listed as

$802,421, and the Gearmar loan, the value of which the trial court listed as $750,000.

{¶17} Neither party appealed the trial court’s judgment entry.

Motion for Relief from Judgment

{¶18} On May 29, 2019, Mr. Bloom filed a motion for relief from judgment pursuant

to Civ.R. 60(A). According to Mr. Bloom, the trial court made a “mathematical

miscalculation” when it totaled the amount of the marital assets. Specifically, he argued

that the trial court inadvertently counted the $500,000 Gearmar loan twice, resulting in a

$250,000 windfall to Ms. Bloom at Mr. Bloom’s expense.

{¶19} Mr. Bloom also submitted affidavits from himself and Ms. Carrier.

{¶20} Mr. Bloom averred that he made two loans to Gearmar totaling $750,000:

(1) a loan in the amount of $500,000 recorded for accounting purposes as an asset of

Bloom Land; and (2) a loan in the amount of $250,000 treated as a loan from himself

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personally. Attached to his affidavit were purported copies of the two loan agreements

with Gearmar, the financial statement that Ms. Bloom introduced at trial, Ms. Carrier’s

written valuation analysis of Bloom Land, and an excerpt from the transcript of Ms.

Carrier’s trial testimony.

{¶21} Ms. Carrier averred that the trial court’s valuation of the Gearmar loan could

only be explained as a double count of the first loan. Attached to her affidavit were a

purported copy of her written valuation analysis of Bloom Land and an excerpt from the

transcript of her trial testimony.

{¶22} Ms. Bloom filed a response in opposition, arguing that the trial court’s

judgment entry indicates it chose to believe the documentary evidence over Mr. Fridley’s

testimony regarding alleged double counting. Thus, Ms. Bloom asserted that any trial

court error was substantive rather than clerical.

{¶23} Mr. Bloom’s motion was heard by the successor to the original trial judge

who issued the divorce decree. The hearing consisted of the testimony and cross-

examination of Mr. Bloom, Ms. Carrier, and Mr. Fridley, the introduction of exhibits, and

argument from counsel.

{¶24} Following the hearing, Ms. Bloom filed a closing brief. In the last sentence,

Ms. Bloom asserted that Mr. Bloom’s motion was “entirely frivolous” and requested that

the trial court grant her reasonable attorney’s fees.

The Appealed Judgment Entry

{¶25} The trial court issued a journal entry denying Mr. Bloom’s motion. The trial

court determined that any error is beyond the scope of Civ.R. 60(A) because it would be

substantive and of a factual nature, and it would require a redetermination of the credibility

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of witnesses and factual determinations rather than the correction of a mechanical and/or

scrivener’s error.

{¶26} Mr. Bloom appealed and presents the following assignment of error for our

review:

{¶27} “The trial court abused its discretion in determining that an obvious double

count of a marital asset was not amenable to correction through Civ. R. 60(A).”

{¶28} Ms. Bloom also appealed, which we sua sponte consolidated with Mr.

Bloom’s appeal. Within her response to Mr. Bloom’s assignment of error, Ms. Bloom

states as follows:

{¶29} “The trial court abused its discretion by not granting attorney’s fees in

response to the frivolous Civ.R. 60(A) motion.”

Clerical Mistake

{¶30} In his sole assignment of error, Mr. Bloom contends that the trial court erred

by denying his motion for relief from judgment pursuant to Civ.R. 60(A).

Standard of Review

{¶31} We review a trial court’s denial of a motion for relief from judgment pursuant

to Civ.R. 60(A) for an abuse of discretion. See State ex rel. Litty v. Leskovyansky, 77

Ohio St.3d 97, 100 (1996).

{¶32} An abuse of discretion is the trial court’s “failure to exercise sound,

reasonable, and legal decision-making.” State v. Beechler, 2d Dist. Clark No. 09-CA-54,

2010-Ohio-1900, ¶62, quoting Black's Law Dictionary 11 (8th Ed.Rev.2004).

{¶33} When an appellate court is reviewing a pure issue of law, the mere fact that

the reviewing court would decide the issue differently is enough to find error (although

harmless errors and errors not preserved for appellate review are not reversible). Id. at

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¶67, fn. 2. By contrast, where the issue on review has been confided to the discretion of

the trial court, the mere fact that the reviewing court would have reached a different result

is not enough, without more, to find error. Id. at ¶67.

Civ.R. 60(A)

{¶34} Civ.R. 60(A) provides for the correction of clerical mistakes after final

judgment has been entered. Palac v. Smith, 11th Dist. Trumbull No. 2005-T-0074, 2006-

Ohio-5366, ¶21. It states, in relevant part, that “[c]lerical mistakes in judgments, orders

or other parts of the record and errors therein arising from oversight or omission may be

corrected by the court at any time on its own initiative or on the motion of any party and

after such notice, if any, as the court orders.”

{¶35} As construed by the Supreme Court of Ohio, “Civ.R. 60(A) permits a trial

court, in its discretion, to correct clerical mistakes which are apparent on the record, but

does not authorize a trial court to make substantive changes in judgments.” Litty at 100,

citing Londrico v. Delores C. Knowlton, Inc., 88 Ohio App.3d 282, 285 (9th Dist.1993);

see Kuehn v. Kuehn, 55 Ohio App.3d 245, 247 (12th Dist.1988), citing Musca v. Chagrin

Falls, 3 Ohio App.3d 192 (8th Dist.1981), paragraph one of the syllabus (“Substantive

changes in judgments, orders, or decrees are not within [the rule’s] purview”). The term

“clerical mistake” refers to “a mistake or omission, mechanical in nature and apparent on

the record which does not involve a legal decision or judgment.” Litty at 100, citing

Londrico at 285.

{¶36} This court has stated that “[t]he basic distinction between clerical mistakes

that can be corrected under Civ.R. 60(A) and substantive mistakes that cannot be

corrected is that the former consists of ‘blunders in execution’ whereas the latter consists

of instances where the court changes its mind, either because it made a legal or factual

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mistake in making its original determination, or because on second thought, it has decided

to exercise its discretion in a different manner.” Faith v. Scuba, 11th Dist. Geauga No.

2007-G-2767, 2007-Ohio-6563, ¶32, quoting Kuehn at 247, citing Blanton v. Anzalone,

813 F.2d 1574, 1577 (9th Cir.1987) (interpreting Fed.R.Civ.P. 60(a)).

{¶37} Courts have held that the proper use of Civ.R. 60(A) is to make changes in

judgments to reflect what, in fact, the trial court really decided. Binder v. Binder, 8th Dist.

Cuyahoga No. 88468, 2007-Ohio-4038, ¶8. In effect, the relief afforded by Civ.R. 60(A)

is the judgment actually rendered by the court. (Citations omitted.) Id.; see also Chrisman

v. Chrisman, 12th Dist. Warren No. CA97-10-109, 1999 WL 59662, *5 (Feb. 8, 1999)

(requested changes under Civ.R. 60(A) may only be granted if they reflect the court’s

“actual intention”).

{¶38} Federal courts applying the identical language in Fed.R.Civ.P. 60(a) have

held that a trial court may invoke the rule “to make a judgment reflect the actual intentions

of the court, plus the necessary implications.” Blanton at 1577.

{¶39} Courts have also held that a modification cannot be characterized as an

improper substantive modification by virtue of its effects. See Foster v. Foster, 4th Dist.

Washington No. 96CA1767, 1997 WL 583567, *6 (Sept. 23, 1997). Rather, “[i]t is the

nature of the correction, rather than the effect of the correction which must be examined.”

Id.; accord Wood v. Wood, 11th Dist. Portage No. 2009-P-0076, 2010-Ohio-2155, ¶24

(affirming a trial court’s substantial alteration of its judgment entry where it did not alter

the court’s intent).

{¶40} Further, this court has recognized that Civ.R. 60(A) cannot be used as a

substitute for an appeal of a judgment. Palac at ¶29, citing Kramer v. Union Eye Care

Ctr., Inc., 9th Dist. Lorain No. 98CA007209, 1999 WL 1215164, *2 (Dec. 15, 1999).

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 Cases finding Civ.R. 60(A) to be applicable

{¶41} Mr. Bloom cites decisions where this court and others have found Civ.R.

60(A) to be applicable in the context of divorce proceedings.

{¶42} For instance, in Angelo v. Angelo, 11th Dist. Trumbull No. 2012-T-0094,

2013-Ohio-5265, the trial court issued a divorce decree ordering that one half of Mr.

Angelo’s vested interest in a pension asset “accrued from May 21, 1988 to November 9,

2002” be transferred to Ms. Angelo by a qualified domestic relations order (QDRO). Id.

at ¶1-2. The original QDRO did so. Id. at ¶3. The trial court subsequently issued an

amended QDRO that omitted the words “accrued from May 21, 1988” and instead stated

“as of November 9, 2002.” Id. at ¶5.

{¶43} Mr. Angelo filed a motion for relief from judgment pursuant to Civ.R. 60(A),

which the trial court granted. Id. at ¶8-9. This court affirmed, finding that the trial court’s

omission involved “precisely the sort of omission, ‘mechanical in nature and apparent on

the record which does not involve a legal decision or judgment,’ that Civil Rule 60(A)

authorizes a court to correct.” Id. at ¶16.

{¶44} In Gould v. Gould, 12th Dist. Butler No. CA2004-01-010, 2005-Ohio-416,

the trial court issued a divorce decree indicating that the parties had divided a checking

account totaling $23,192.18 to their mutual satisfaction, with one spouse receiving

$12,393.46 and the other spouse receiving $10,799.72. Id. at ¶31. The trial court found

that the property was considered the separate property of each party. Id. However, in

calculating the value of the marital estate, the trial court included the $23,192.18 checking

account as a marital asset. Id.

{¶45} Ms. Gould filed a motion for relief from judgment pursuant to Civ.R. 60(A),

which the trial court denied. Id. at ¶2. The Twelfth District reversed, finding that its “review

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of the trial court’s calculations reveals an inconsistency with the trial court’s decree of

divorce.” Id. at ¶30. The court concluded that the trial court committed a clerical mistake

in adding $23,192.18 to the marital estate. Id. at ¶32.

{¶46} In Shaver v. Shaver, 4th Dist. Galia No. 05CA5, 2005-Ohio-6642, trial

counsel recited the terms of the parties’ agreed division of marital property on the record.

Id. at ¶2. The trial court subsequently issued a decree of divorce setting forth the division

of marital property and debts and explicitly incorporated the transcript of the final divorce

hearing as if fully rewritten in the decree. Id. As part of the property division, Mr. Shaver

was to keep the marital residence, and Ms. Shaver was ordered to convey her interest by

deed. Id. at ¶3. The decree also ordered Mr. Shaver to pay a cash settlement to Ms.

Shaver of $11,000 for her share of his retirement/pension plan and $53,504.79 for her

share of the marital residence. Id. at ¶4.

{¶47} Mr. Shaver paid the $53,604.79 sum but demanded an additional $11,000

before conveying her interest in the real property. Id. at ¶6. Mr. Shaver filed a motion

pursuant to Civ.R. 37 to compel Ms. Shaver to execute the deed. Id. at ¶5. He argued

that the provision in the decree requiring the $11,000 payment was a clerical error that

the court should correct pursuant to Civ.R. 60(A). Id. at ¶7.

{¶48} After a hearing and briefing, the trial court found that the judgment entry “did

not accurately reflect the agreement of the parties in that a number of the marital assets

and liabilities set forth on the record were omitted from the Judgment Entry Decree of

Divorce.” Id. at ¶9. The trial court found that the $53,504.79 Mr. Shaver paid to Ms.

Shaver plus the in-kind property received by her satisfied Mr. Shaver’s obligation. Id.

{¶49} The Fourth District affirmed, finding that the “record clearly demonstrates

that the trial court made an inadvertent mathematical error in the divorce decree when it

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calculated the cash settlement that Mr. Shaver was to pay to Ms. Shaver.” Id. at ¶14.

After reviewing the terms of the parties’ agreement that counsel had recited on the record,

the court concluded that “it is clear from the record that the $53,504.79 cash payment

made to Ms. Shaver included the $11,000 she was entitled to receive for her share of Mr.

Shaver’s pension.” Id. at ¶20.

{¶50} Finally, Mr. Bloom cites Bittner v. Bittner, 5th Dist. Delaware No. 16 CAF

10 0043, 2017-Ohio-7498. In that case, the parties’ agreed judgment entry/decree of

divorce provided awarded Mr. Bittner all of his 401(K) plan, while Ms. Bittner was to share

equally in his profit-sharing plan. Id. at ¶4-5. Subsequently, Fidelity Investments

administratively merged the plans. Id. at ¶61. Ms. Bittner filed a motion for contempt for

financial obligations under the decree and sought funds from Mr. Bittner’s investment

accounts. Id. at ¶7. The trial court ultimately issued an amended QDRO to assign Ms.

Bittner a portion of the total account balance for the “employee retirement plan.” Id. at

¶10. Based on the name of the plan utilized in the amended QDRO, Fidelity Investments

also split the 401(K) plan between the parties. Id. at ¶60.

{¶51} Mr. Bittner filed a motion pursuant to Civ.R. 60(A) relating to the above issue

and others, which the trial denied. Id. at ¶16, 32. The Fifth District reversed a portion of

the trial court’s denial, finding that the split was in contravention of the divorce decree. Id.

at ¶63. According to the court, “a corrected judgment entry would not create new rights,

but would merely grant Husband the rights originally agreed to and intended in the divorce

decree.” Id.

{¶52} Mr. Bloom asserts that the above cases and the underlying case involved

“mathematical miscalculations” that were “inconsistent with the obvious intent of the

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judgment,” “were apparent on the record,” and “did not involve matters of judicial

discretion.”

Cases finding Civ.R. 60(A) to be inapplicable

{¶53} Ms. Bloom distinguishes the above cases and cites decisions where courts

have found Civ.R. 60(A) to be inapplicable.

{¶54} For instance, in Bittner, the Fifth District affirmed a portion of the trial court’s

denial of Mr. Bittner’s Civ.R. 60(A) motion. Mr. Bittner had also argued that a value listed

in the amended QDRO related to later date than to which the parties had agreed in the

divorce decree. Id. at ¶57. The court found that the trial court did not abuse its discretion

in finding the testimony regarding the error to be “unclear” and that the alleged error was

more than a clerical error or blunder in execution. Id. at ¶59. According to the court, Mr.

Bittner’s request “goes beyond the scope of merely correcting a clerical error and instead

requires a legal judgment and decision that would have to be brought to the attention of

the trial court through a Civil Rule 60(B) motion.” Id.

{¶55} In Merkle v. Merkle, 5th Dist. Licking No. 13-CA-31, 2014-Ohio-81, the trial

court issued a divorce decree, which neither party appealed. Id. at ¶3. Ms. Merkle

subsequently filed a “motion for reconsideration,” requesting the correction of issues

relating to retirement and personal property pursuant to Civ.R. 60(A), which the trial court

denied. Id. at ¶3-4.

{¶56} The Fifth District affirmed, finding that Ms. Merkle’s requests went beyond

the scope of merely correcting a clerical error or blunder in execution and required “legal

decisions and judgments” which would “constitute a substantive change to the court’s

judgment.” Id. at ¶13. According to the court “[i]f a mistake was made in the divorce

decree as appellant asserts, it was not a clerical mistake[,] and we would have to review

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the trial court’s decision in conjunction with the evidence presented to the trial court. Civil

Rule 60(A) cannot be utilized to correct such a mistake and cannot be applied to change

something which was deliberately done.” Id., citing Melkerson v. Melkerson, 11th Dist.

Geauga No. 2009-G-2887, 2009-Ohio-6381.

{¶57} The court also concluded that Ms. Merkle was actually attempting to utilize

Civ.R. 60(A) as a substitute for appeal:

{¶58} “The issues raised by appellant in her motion for reconsideration were

cognizable on direct appeal from the * * * divorce decree and are a challenge to the

correctness of the trial court’s decision on the merits. Such a challenge could have been

raised by way of appeal of the divorce decree[,] and Rule 60(A) relief is not available as

a substitute for such appeals.” Id. at ¶14.

{¶59} Finally, in Countrywide Home Loans, Inc. v. Hannaford, 9th Dist. Summit

No. 22000, 2004-Ohio-4317, a second mortgage holder who had not been notified of a

foreclosure suit (MERS-SF), filed a motion to intervene and made a claim on excess

funds, which the trial court denied. Id. at ¶5-8. MERS-SF did not appeal the denial but

instead filed a “motion for reconsideration, or in the alternative, motion for relief from

judgment,” based, in part, on Civ.R. 60(A), which the trial court also denied. Id. at ¶9-10.

{¶60} On appeal of the latter judgment, MERS-SF argued that the trial court’s

decision was based on the “inadvertent misunderstanding that it was a plaintiff to, and

thus notified of, the original suit.” Id. at ¶17. The Ninth District found that Civ.R. 60(A) “is

used to fix clerical errors alone, and not to alter substantive issues” and that “‘an

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inadvertent misunderstanding’ by the trial court, as alleged by MERS-SF, simply does not

fall under this type of clerical rule.” Id. at ¶18.1

{¶61} Ms. Bloom argues that under the above case law, Civ.R. 60(A) may only be

applied in mechanical calculations to correct obvious mistakes in math but not to add

information, words, or numbers, or to substitute the court’s initial judgment regarding the

figures to use in its calculations.

Analysis

{¶62} In light of the above authorities, we find that the trial court did not abuse its

discretion in denying Mr. Bloom’s motion for relief from judgment pursuant to Civ.R. 60(A)

because Mr. Bloom did not establish that the trial court made a “clerical mistake” in the

divorce decree.

{¶63} The cases Mr. Bloom cites are all distinguishable because they involved

situations in which a trial court’s judgment was contrary to its intent as reflected in the

record.

{¶64} For instance, Angelo and Bittner both involved subsequent QDRO’s that

conflicted with a prior divorce decree. See Angelo at ¶16; Bittner at ¶63. Shaver involved

a subsequent divorce decree that conflicted with the terms of the parties’ agreement that

counsel had recited on the record, the transcript of which the trial court explicitly

incorporated into the decree. See id. at ¶2, 20. And Gould involved a divorce decree in

1. Ms. Bloom also cites Westhoven v. Westhoven, 6th Dist. Ottawa No. OT-10-037, 2011-Ohio-3610, for
the proposition that “the choice of asset numbers used by the court was a judgment question and not a
mathematical computation question.” However, Westhoven does not expressly state this holding. The
Sixth District found no clerical mistakes but ultimately held that Mr. Westhoven’s argument was barred by
the doctrine of res judicata, as it had previously affirmed the trial court’s judgment, and no claims of
mathematical errors in the calculation of values or the distribution of assets had been raised. See id. at ¶8-
9, 14-15.

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which the trial court’s calculation of the value of the marital estate conflicted with its

determination and calculation of marital assets. See id. at ¶30-31.

{¶65} In the underlying case, the trial court heard conflicting evidence at trial

regarding the Gearmar loans. While trial court appears to have adopted Ms. Carrier’s

opinion of value for Bloom Land, it did not identify the “notes receivable” that comprised

Bloom Land’s net assets.

{¶66} Further, the trial court determined that Gearmar owed “Incredible Solutions”

the sum of $750,000, not Bloom Land or Mr. Bloom personally. The trial court did not cite

the evidence upon which this determination was based, nor did it reference Bloom Land

or Mr. Fridley’s testimony regarding alleged double-counting.

{¶67} Thus, unlike in Angelo and Bittner, the trial court’s judgment entry does not

conflict with its intent as expressed elsewhere. Unlike in Shaver, the trial court issued

findings of fact after evaluating voluminous and sometimes conflicting evidence; it was

not intending to transcribe an agreement between the parties. And unlike in Gould, the

trial court’s determination and valuation of marital assets is consistent with its calculation

of the marital estate. See also Newton v. Newton, 2d Dist. Greene No. 07-CA-018, 2008-

Ohio-1757, ¶5 (finding no “clerical mistake” where “the court referred to nothing on the

record that demonstrated the court had made an inadvertent error in dividing the parties’

retirement pensions”); Londrico, supra, at 286, (finding that “only a blunder in execution”

explained the trial court’s inclusion of the phrase “case is dismissed” in a judgment entry

in light of other language).

{¶68} Instead, as in Merkle, Mr. Bloom is attempting to utilize Civ.R. 60(A) to

change something which appears to have been deliberately done. See id. at ¶13. This

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court and others have consistently held that Civ.R. 60(A) may not be applied in this

manner.

{¶69} For example, in Melkerson, supra, this court held a trial court could not alter

a “prudential error” in effectuating the division of a 401(k) in an agreed judgment entry of

divorce. Id. at ¶41.

{¶70} In Dentsply Internatl., Inc. v. Kostas, 26 Ohio App.3d 116 (8th Dist.1985),

the Eighth District held that Civ.R. 60(A) applies to “inadvertent clerical errors only.” Id.

at 118.

{¶71} In Newton, the Second District held that a trial court could not materially

alter its intentional division of the parties’ retirement accounts through Civ.R. 60(A), even

though the judgment did not reflect the parties’ agreement. Id. at ¶5

{¶72} In Paris v. Georgetown Homes, Inc., 113 Ohio App.3d 501 (9th Dist.1996),

the Ninth District held that Civ.R. 60(A) could not be utilized where the record indicated

that the trial court’s exclusion of words in a judgment entry were intentional rather than

inadvertent. Id. at 503-04.

{¶73} And in Chrisman, supra, the Twelfth District held that Civ.R. 60(A) could not

be utilized to change something that the trial court did deliberately, even if it were based

on an erroneous assumption. Id. at *5. Instead, such a determination must be left to the

trial court in the first instance. Id.

{¶74} In the event the trial court made a mistake in the divorce decree, it would

constitute a mistake of fact based on the trial court’s erroneous evaluation of the trial

evidence. Therefore, as in Merkle, the alterations that Mr. Bloom requested would require

legal decisions and judgments based on the record, not merely the correction of

mechanical mistakes. See id. at ¶13.

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 {¶75} Courts have consistently held that such mistakes are beyond the scope of

Civ.R. 60(A).

{¶76} For example, in Hamlin v. Hamlin, 2d Dist. Darke No. 1312, 1993 WL 32010

(Feb. 12, 1993), the Second District held that a trial court’s factual finding in a final

judgment of divorce regarding the value of a savings-stock purchase program would

constitute a mistake of fact rather than a mere clerical blunder. Id. at *2.

{¶77} In Chrisman, the Twelfth District held that the amount a trial court

determined a party must pay to accomplish an equalization of a property division was not

a clerical error but a mistake of fact based on an “erroneous assumption.” Id. at *5.

{¶78} In Thurston v. Thurston, 10th Dist. Franklin No. 02AP-555, 2002-Ohio-6746,

the Tenth District held that a magistrate’s factual determination regarding the date

spousal support arrearages were owed was beyond the scope of Civ.R. 60(A). Id. at ¶14.

{¶79} In Countrywide Home Loans, Inc., the Ninth District held that a judgment

resulting from a trial court’s “inadvertent misunderstanding” of the facts was beyond the

scope of Civ.R. 60(A). Id. at ¶18.

{¶80} In Hiles v. Veach, 4th Dist. Pike No. 97CA604, 1998 WL 823802 (Nov. 20,

1998), the Fourth District held that regarding the amount of child support arrearage was

a factual mistake beyond the scope of Civ.R. 60(A). Id. at *3.

{¶81} And in Prarat v. Am. Analytical Laboratories, Inc., 9th Dist. Summit No.

15715, 1993 WL 21012 (Jan. 27, 1993), the Ninth District held that changing a factual

finding regarding the number of projects on which an employee worked would be

substantive rather than clerical. Id. at *4.

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 {¶82} The appropriate procedure was for Mr. Bloom to file a timely appeal of the

trial court’s judgment entry/divorce decree rather than a motion for relief from judgment

under Civ.R. 60(A). See Merkle at ¶14.

{¶83} The trial court’s analysis in its journal entry denying Mr. Bloom’s Civ.R.

60(A) motion is in accord with the proceeding discussion. Therefore, we conclude that

the trial court did not abuse its discretion in denying Mr. Bloom’s motion for relief from

judgment pursuant to Civ.R. 60(A).

{¶84} Mr. Bloom’s sole assignment of error is without merit.

Attorney’s Fees

{¶85} As indicated, Ms. Bloom also appealed the trial court’s journal entry denying

Mr. Bloom’s motion for relief from judgment, which we sua sponte consolidated with Mr.

Bloom’s appeal.

{¶86} We note that Ms. Bloom has failed to set forth her assignment of error in

compliance with App.R. 16(A)(3) and Loc.R. 16(C)(1) and (4). Instead, in a “response”

to Mr. Bloom’s assignment of error, Ms. Bloom asserts that “[t]he trial court abused its

discretion by not granting attorney’s fees in response to the frivolous Civ.R. 60(A) motion.”

However, because Mr. Bloom was afforded the opportunity to respond to this assertion,

we will address it in the interest of justice. See Germadnik v. Auld, 11th Dist. Trumbull

No. 2017-T-0113, 2018-Ohio-2889, ¶11.

{¶87} R.C. 2323.51(B)(1) provides that “any party adversely affected by frivolous

conduct may file a motion for an award of court costs, reasonable attorney's fees, and

other reasonable expenses incurred in connection with the civil action * * *.” (Emphasis

added.) R.C. 2323.51(B)(2) provides that “[a]n award may be made pursuant to division

(B)(1) of this section upon the motion of a party to a civil action * * *.” (Emphasis added.)

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 {¶88} Pursuant to Civ.R. 7(B)(1), “[a] motion, whether written or oral, shall state

with particularity the grounds therefor, and shall set forth the relief or order sought.” Thus,

a party is required to file a motion when seeking a court order so that the trial court's

attention is drawn to the issue. Dale v. Dale, 10th Dist. Franklin No. 02AP-644, 2003-

Ohio-1113, ¶10. Further, by requiring a movant to file a motion stating the grounds for

relief with particularity, Civ.R. 7(B)(1) ensures that the non-moving party can formulate an

appropriate response. Id.

{¶89} The record indicates that following the hearing on Mr. Bloom’s 60(A) motion,

Ms. Bloom filed a closing brief, the last sentence of which states as follows:

{¶90} “Further, as Plaintiff has brought an entirely frivolous Motion, well beyond

the scope of Civ.R. 60(A), this Honorable Court should grant Defendant reasonable

attorney’s fees for her defense of this motion, including the briefs and hearing.”

{¶91} Mr. Bloom filed a response to Ms. Bloom’s closing brief but did not

acknowledge or address her request for attorney’s fees. In its journal entry denying Mr.

Bloom’s 60(A) motion, the trial court also did not acknowledge or address Ms. Bloom’s

request.

{¶92} Without a formal, proper motion pursuant to Civ.R. 7(B)(1), the issue of

attorney’s fees was not before the trial court, and the trial court could not rule upon it.

See Dale at ¶11; Young v. Russ, 11th Dist. Lake No. 2003-L-206, 2005-Ohio-3397, ¶69

(reversing an award of attorney’s fees where the party’s request was contained in a

footnote in its memorandum in support of a motion for summary judgment).

Consequently, we conclude that the trial court did not err by failing to grant Ms. Bloom’s

request for attorney’s fees.

{¶93} Ms. Bloom’s sole assignment of error is without merit.

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 {¶94} Based on the foregoing, the judgment of the Trumbull County Court of

Common Pleas, Domestic Relations Division, is affirmed.

TIMOTHY P. CANNON, P.J.,

MATT LYNCH, J.,

concur.

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