Molnar-Satterfield v. Molnar

[Cite as Molnar-Satterfield v. Molnar, 2021-Ohio-2698.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY

TAMELA K. MOLNAR-SATTERFIELD :
:
Plaintiff-Appellant : Appellate Case No. 2020-CA-52
:
v. : Trial Court Case No. 2014-DM-82
:
MICHAEL F. MOLNAR : (Domestic Relations Appeal)
:
Defendant-Appellee :
:

...........

OPINION

Rendered on the 6th day of August, 2021.

...........

THOMAS M. KOLLIN, Atty. Reg. No. 0066964, 3725 Pentagon Boulevard, Suite 270,
Beavercreek, Ohio 45431
Attorney for Plaintiff-Appellant

CATHERINE H. BREAULT, Atty. Reg. No. 0098433, 130 West Second Street, Suite
2150, Dayton, Ohio 45402
Attorney for Defendant-Appellee

.............

TUCKER, P.J.
 -2-

{¶ 1} Plaintiff-appellant Tamela K. Molnar-Satterfield appeals from a judgment of

the Greene County Court of Common Pleas, Domestic Relations Division, which denied

her motions to hold her ex-husband, Michael F. Molnar, in contempt and to vacate the

final judgment and decree of dissolution. For the reasons that follow, we affirm.

I. Facts and Procedural History

{¶ 2} Tamela and Michael were married in 1990.1 At the time of their marriage,

they both were civilian employees at Wright-Patterson Air Force Base (“WPAFB”), and

both were participating in the Civil Service Retirement System (CSRS), which provides

monthly retirement benefits from the time of retirement until death. Both parties were

also enrolled in a Thrift Savings Plan (TSP), a supplemental retirement savings vehicle

into which the parties could make voluntary contributions.

{¶ 3} In 1993, the parties had a child, and Tamela quit working in order to stay

home with the child. When the child was approximately eight years old, Tamela returned

to work at WPAFB. According to Tamela, she was no longer entitled to participate in the

TSP, but she did continue to participate in the CSRS plan.2

{¶ 4} In 2014, the parties filed a joint petition for dissolution of their marriage.

They also filed affidavits of financial disclosure and a signed separation agreement.3 Of

1
For ease of reference, we refer to the parties by their first names.

2
We note that no competent documentary evidence regarding the parties’ retirement
accounts was introduced into this record.

3
The petition, the final judgment and decree of dissolution, and the separation agreement
were prepared by Tamela’s attorney. Michael was not represented by counsel during
the dissolution proceedings.
 -3-

relevance to this appeal, the separation agreement stated, “[t]he Thrift Savings Plan

presently in Husband’s name, shall remain in his name and the Wife shall be named as

the recipient (beneficiary) thereon.” The agreement also stated, “[t]he parties specifically

agree that they disavow any interest in the other’s retirement, 401k or any other type of

pension plans which are in existence at the time of the signing of this Separation

Agreement.” Id. Following a hearing on June 10, 2014, the petition for dissolution was

granted; the final judgment and decree of dissolution and separation agreement were

filed on June 13, 2014. Thereafter, Michael filed the appropriate documents to name

Tamela as the beneficiary of his TSP.

{¶ 5} In December 2018, Tamela obtained new counsel and filed a motion seeking

to hold Michael in contempt for moving funds out of his TSP and for failing to list her as

the beneficiary of that plan. After a hearing on June 20, 2019, the magistrate entered an

order indicating that the parties had reached an agreement on the issues raised in the

contempt motion. The order required Tamela’s attorney to prepare and submit the

agreed order to the court. It appears that Tamela’s attorney attempted to obtain a copy

of the hearing transcript, but no recording had been made. No order was submitted.

{¶ 6} In October 2019, Tamela again obtained new counsel. On December 12,

2019, the court entered a notice stating the motion for contempt would be dismissed if the

agreed entry was not filed by December 26. On December 23, 2019, Tamela filed a

motion seeking a hearing regarding the motion for contempt.

{¶ 7} On January 28, 2020, Tamela filed a motion to set aside the final judgment

and decree of dissolution, including the separation agreement. In her motion, she

asserted that she was entitled to relief under the terms of Civ.R. 60(B)(5). Specifically,
 -4-

she claimed that Michael had committed a fraud upon the court by failing to disclose his

TSP on his financial disclosure affidavit and that relief from the separation agreement was

appropriate because her consent thereto was procured by that fraud.

{¶ 8} The magistrate conducted a hearing on both the motion for contempt and the

motion for Civ.R. 60(B)(5) relief from judgment. The magistrate then entered an order

denying both motions. Tamela filed objections, which were subsequently overruled by

the trial court.

{¶ 9} Tamela appeals.

II. Civil Rule 60(B) Motion

{¶ 10} The first assignment of error asserted by Tamela states:

THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO GRANT

APPELLANT’S CIVIL RULE 60(B) MOTION BECAUSE THERE WAS A

WILLFUL ERROR MADE BY APPELLEE REGARDING THE

EXISTENCE/ACTUAL VALUE OF HIS RETIREMENT AND THRIFT

SAVINGS ACCOUNTS, AND THEREFORE, WOULD HAVE CHANGED

THE SEPARATION AGREEMENT AND DIVISION OF MARTIAL [SIC]

PROPERTY INVOLVED.

{¶ 11} Tamela asserts that the domestic relations court erred by denying her

requested Civ.R. 60(B) relief.4

{¶ 12} Civ.R. 60(B) permits a court to relieve a party from a final judgment, order,

4
In her motion, Tamela sought relief solely under Civ.R. 60(B)(5); however, at the end of
the hearing, her counsel orally amended the motion to include a Civ.R. 60(B)(4) claim.
 -5-

or proceeding for the following reasons:

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

(2) newly discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Rule 59(B);

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation

or other misconduct of an adverse party;

(4) the judgment has been satisfied, released or discharged, or a prior judgment

upon which it is based has been reversed or otherwise vacated, or it is no longer

equitable that the judgment should have prospective application; or

(5) any other reason justifying relief from the judgment.

Civ.R. 60(B)(1)-(5).

{¶ 13} To prevail on a Civ.R. 60(B) motion, a party must establish: (1) a meritorious

claim or defense to present if the court grants relief; (2) entitlement to relief under one of

the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion was filed within a

reasonable time and, when relying on a ground for relief set forth in Civ.R. 60(B)(1), (2),

or (3), it was filed not more than one year after the judgment was entered. GTE

Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976),

paragraph two of the syllabus. If the moving party fails to establish any of these

cumulative requirements, the trial court must overrule the motion. Rose Chevrolet, Inc.

v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988). Because a trial court exercises

its discretion when ruling on a Civ.R. 60(B) motion, an appellate court will not disturb such

a ruling absent an abuse of discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d

1122 (1987). The term “abuse of discretion” connotes an attitude by the court which is
 -6-

arbitrary, unconscionable, or unreasonable. AAAA Ents., Inc. v. River Place Community

Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

{¶ 14} A decree of dissolution is founded on an agreement of the parties. As the

Ohio Supreme Court has stated, “mutual consent is the cornerstone of our dissolution

law.” Knapp v. Knapp, 24 Ohio St.3d 141, 144, 493 N.E.2d 1353 (1986). “[I]f consent

or mutuality did not exist when the parties entered into the separation agreement because

of fraud or material mistake or misrepresentation, then there was no agreement upon

which the dissolution decree could have been based. This lack of mutuality undermines

the integrity of the dissolution proceeding and may constitute sufficient grounds to set

aside the decree under Civ.R. 60(B).” In re Whitman, 81 Ohio St.3d 239, 241, 690

N.E.2d 535 (1998). “Courts have used Civ.R. 60(B) to set aside dissolution decrees

where the separation agreement was based on incomplete financial disclosure.”

(Citation omitted.) Nardecchia v. Nardecchia, 155 Ohio App.3d 40, 2003-Ohio-5410, 798

N.E.2d 1198, ¶ 14 (2d Dist.).

{¶ 15} In her written motion, Tamela claimed a right to relief under Civ.R. 60(B)(5),

which permits a court to set aside a judgment for “any other reason justifying relief from

the judgment.” In support, she argued that Michael’s filing of an incomplete affidavit of

financial disclosure constituted a fraud upon the court, which resulted in a violation of the

mutual consent underlying the dissolution proceeding and rendered the decree of

dissolution voidable.5

5
Tamela claims Michael’s intent to deceive her regarding the value of his TSP was
evidenced by the fact that he moved the TSP funds “immediately” after the final judgment
and decree of dissolution was filed. However, the record shows that he did not move the
funds until October 2018, more than four years later.
 -7-

{¶ 16} A court may grant relief under Civ.R. 60(B)(5), the so-called “catch-all”

provision, only in those extraordinary and unusual cases where the moving party

demonstrates substantial grounds warranting relief from judgment. Caruso-Ciresi, Inc.

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

Substantial grounds may exist if the moving party establishes a fraud upon the court.

Coulson v. Coulson, 5 Ohio St.3d 12, 448 N.E.2d 809 (1983), paragraph one of the

syllabus.

{¶ 17} Michael’s argument in opposition to the motion correctly noted that Civ.R.

60(B)(5) cannot be used as a substitute for any of the other, more specific grounds in

Civ.R. 60(B). Caruso-Ciresi, paragraph one of the syllabus. He further asserted that

Tamela’s claim of fraud properly fell under the more specific grounds of Civ.R. 60(B)(3)

and, thus, had to be filed within one year from the entry of the decree.

{¶ 18} The difference between claims of fraud in the context of Civ.R. 60(B)(3) and

(B)(5) was thoroughly discussed in Roubanes Luke v. Roubanes, 2018-Ohio-1065, 109

N.E.3d 671 (10th Dist.), wherein the Tenth District Court of Appeals stated:

Courts carefully distinguish between fraud upon the court, which is a

basis for relief from judgment under Civ.R. 60(B)(5), and fraud upon a party,

which is a basis for relief from judgment under Civ.R. 60(B)(3).

Technically, any fraud connected with the presentation of a case to a court

could constitute fraud upon the court in a broad sense. Coulson v.

Coulson, 5 Ohio St.3d 12, 15, 448 N.E.2d 809 (1983). However, courts

cannot invoke Civ.R. 60(B)(5) when any of the more specific provisions of

Civ.R. 60(B) apply. Cuyahoga Support Enforcement Agency v. Guthrie, 84
 -8-

Ohio St.3d 437, 440, 705 N.E.2d 318 (1999); Caruso-Ciresi, Inc. v.

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

syllabus. As we stated above, Civ.R. 60(B)(3) permits relief from judgment

in cases of fraud, misrepresentation, and other misconduct by an adverse

party. Thus, Civ.R. 60(B)(3) applies when an adverse party's fraud,

misrepresentation, or misconduct in obtaining a judgment has prevented

the other party from fully and fairly presenting its case. Bank of Am., N.A.

v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 13; PNC

Bank, N.A. v. Botts, 10th Dist. [Franklin] No. 12AP-256, 2012-Ohio-5383,

¶ 15. “Fraud on an adverse party may exist when, for example, a party

presents material false testimony at trial, and the falsity is not discovered

until after the trial.” Botts at ¶ 15; In re Dankworth Trust, 7th Dist. [Belmont]

No. 14 BE 9, 2014-Ohio-5825, ¶ 38. If courts accorded fraud upon the

court a broad meaning, it could easily subsume the type of fraud covered

by Civ.R. 60(B)(3). Courts, therefore, narrowly construe fraud upon the

court in order to prevent it from overwhelming Civ.R. 60(B)(3) and rendering

Civ.R. 60(B)(3)'s one-year time limitation meaningless. Heltzel v. Heltzel,

11th Dist. [Trumbull] No. 3788, 1987 WL 18032 (Sept. 30, 1987); Hartford

v. Hartford, 53 Ohio App.2d 79, 83, 371 N.E.2d 591 (8th Dist.1977); accord

Great Coastal Express, Inc. v. Internatl. Bhd. of Teamsters, 675 F.2d 1349,

1356 (4th Cir.1982) (“The principal concern motivating narrow construction

is that the otherwise nebulous concept of ‘fraud on the court’ could easily

overwhelm the specific provision of 60(b)(3) and its time limitation and
 -9-

thereby subvert the balance of equities contained in the Rule.”).

Due to this narrow construction, in the usual case, fraud in the

presentation of evidence amounts to fraud upon a party. Coulson at 15,

448 N.E.2d 809. False testimony and the withholding of evidence

generally fall within Civ.R. 60(B)(3), not Civ.R. 60(B)(5). Derico v.

Schimoler, 8th Dist. [Cuyahoga] No. 94935, 2011-Ohio-615, ¶ 12; Caron v.

Manfresca, 10th Dist. [Franklin] No. 98AP-1399, 1999 WL 739570 (Sept.

23, 1999); Still v. Still, 4th Dist. [Gallia] No. 95CA15, 1996 WL 362259 (June

25, 1996); accord Geo. P. Reintjes Co. v. Riley Stoker Corp., 71 F.3d 44,

49 (1st Cir.1995) (holding that “perjury alone, absent allegation of

involvement by an officer of the court * * *, has never been sufficient” to

constitute fraud upon the court); Gleason v. Jandrucko, 860 F.2d 556, 560

(2d Cir.1988) (holding that “neither perjury nor nondisclosure, by itself,

amounts to anything more than fraud involving injury to a single litigant”);

Kerwit Med. Prods., Inc. v. N & H Instruments, Inc., 616 F.2d 833, 837 (5th

Cir.1980) (“[M]ere nondisclosure to an adverse party and to the court of

facts pertinent to a controversy before the court does not add up to ‘fraud

upon the court.’ ”). “The possibility of perjury, even concerted, is a common

hazard of the adversary process with which litigants are equipped to deal

through discovery and cross-examination, and, where warranted, [a Civ.R.

60(B)(3)] motion for relief from judgment.” Geo. P. Reintjes at 49. Fraud

upon the court is limited to the more egregious forms of subversion of the

legal process, which a court cannot necessarily expect to be exposed by
 -10-

the normal adversary process. * * *

In Scholler v. Scholler, 10 Ohio St.3d 98, 462 N.E.2d 158 (1984), the

Supreme Court of Ohio considered whether a fraud upon the court occurred

based on an ex-wife's allegation that her ex-husband fraudulently withheld

critical financial information and misrepresented his financial status during

negotiation of a separation agreement. The court defined “fraud upon the

court” “as the situation ‘[w]here an officer of the court, e.g., an attorney * * *

actively participates in defrauding the court * * *.’ ” Id. at 106 * * *, quoting

Coulson at 15 * * *. Because the ex-wife alleged that the adverse party—

not an officer of the court—had committed the fraud at issue, the court

concluded that the ex-wife had not established fraud upon the court. Id.

Subsequently to Scholler, multiple Ohio courts, including this court,

have concluded that, if the alleged fraud occurred between the parties,

Civ.R. 60(B)(3) is the only ground upon which the aggrieved party can seek

relief from a prior judgment. If, on the other hand, an attorney or other

officer of the court perpetrates a fraud on the court, then Civ.R. 60(B)(5) is

the proper basis for requesting relief. Wells Fargo Bank, N.A. v. Bluhm,

6th Dist. [Erie] No. E-13-052, 2015-Ohio-921, ¶ 30-31; Costakos v.

Costakos, 10th Dist. [Franklin] No. 03AP-959, 2004-Ohio-2138, ¶ 11;

McGowan v. Stoyer, 10th Dist. [Franklin] No. 02AP-263, 2002-Ohio-5410,

¶ 18; Applegate v. Applegate, 10th Dist. [Franklin] No. 99AP-1321, 2000

WL 1358063 (Sept. 21, 2000); In re Foreclosure of Liens for Delinquent

Land Taxes, 10th Dist. [Franklin] No. 99AP-714 (Mar. 28, 2000); Turoczy v.
 -11-

Turoczy, 30 Ohio App.3d 116, 506 N.E.2d 942 (8th Dist.1986), syllabus;

accord In re Dankworth Trust at ¶ 38 (holding that Civ.R. 60(B)(5) is “used

when the fraud alleged is done by an officer of the court; Civ.R. 60(B)(3)

only applies to fraud that is committed by an adverse party”); BAC Home

Loans Servicing, L.P. v. Meister, 11th Dist. [Lake] No. 2012-L-042, 2013-

Ohio-873, ¶ 16, quoting Coulson at 15 * * * (“[A] party may use Civ.R.

60(B)(5) to raise the issue of fraud upon the court; however, this concept

has been distinguished from fraud by an adverse party and has been

carefully limited to the occasion where an ‘officer of the court * * * actively

participates in defrauding the court.’ ”); Huffman v. Huffman, 4th Dist.

Adams No. 00CA704, 2001 WL 1383020 (Oct. 30, 2001) (“[I]n order to show

fraud upon the court, and be subject to Civ.R. 60(B)(5)'s more lenient time

limits, a party must show that an officer of the court actively participated in

defrauding the court.”).

Roubanes Luke at ¶ 23-26; accord Hash v. Hash, 2d Dist. Montgomery No. 16855, 1998

WL 211893, *4 -5 (May 1, 1998).

{¶ 19} Based upon the relevant case law, we conclude that Tamela’s allegations,

if true, constituted fraud between the parties implicating Civ.R. 60(B)(3). Thus, Tamela’s

motion to vacate the final judgment and decree of dissolution on the basis of fraud had to

be filed within one year of the final judgment and decree of dissolution being filed. Since

it was not, Tamela’s fraud claim was time barred.

{¶ 20} However, even if Tamela had timely filed the request for relief, we would

find it lacking in merit. The elements of fraud are (1) a representation (or concealment
 -12-

of a fact when there is a duty to disclose), (2) that is material to the transaction at hand,

(3) made falsely, with knowledge of its falsity or with such utter disregard and

recklessness as to whether it is true or false that knowledge may be inferred, (4) with

intent to mislead another into relying upon it, (5) justifiable reliance, and (6) resulting injury

proximately caused by the reliance. Ajibola v. Ohio Med. Career College, Ltd., 2018-

Ohio-4449, 122 N.E.3d 660, ¶ 15 (2d Dist.). “An action for fraud may be grounded upon

failure to fully disclose facts of a material nature where there exists a duty to speak.” Id.

at ¶ 16, quoting Lone Star Equities, Inc. v. Dimitrouleas, 2015-Ohio-2294, 34 N.E.3d 936,

¶ 61 (2d Dist.), citing Layman v. Binns, 35 Ohio St.3d 176, 178, 519 N.E.2d 642 (1988).

{¶ 21} During the hearing, Michael was asked why he omitted the TSP account

from his financial disclosures. In response, Michael stated that he had not been in pay

status and thus was not receiving income from the account at that time. The magistrate

concluded that Michael could not be found to have committed fraud because the financial

affidavit asked only for sources of income, and insofar as Michael had not been receiving

income from the TSP account at the time of the dissolution proceeding, he was not

required to disclose the account.6 Indeed, the record indicates that Tamela also had a

CSRS retirement plan which was not listed on her affidavit.

{¶ 22} More importantly, even though the TSP was not listed in Michael’s financial

affidavit, it was expressly included in the separation agreement. Further, the record

clearly demonstrates that, at the time she signed the separation agreement, Tamela was

aware of the existence and value of the TSP. Thus, as the magistrate noted, “to infer

6
The court noted that the affidavit form was subsequently amended to require parties to
disclose retirement accounts regardless of pay status.
 -13-

Tamela had no knowledge of the Thrift Savings Plan is illogical.” Magistrate’s Decision

and Order (Aug. 6, 2020).

{¶ 23} On the facts of this case, Tamela did not show that Michael had a duty to

disclose the TSP or that he intended to mislead her by omitting it from the financial

disclosure affidavit. Further, she did not show that she detrimentally relied upon the

affidavit. Thus, her claim of fraud was specious, at best.

{¶ 24} We next turn to Tamela’s claim that she was entitled to relief under the

portion of Civ.R. 60(B)(4) which provides for relief when “it is no longer equitable that the

judgment should have prospective application.”

{¶ 25} Relief under Civ.R. 60(B)(4) is only afforded to those individuals who are

subjected to circumstances which could not be foreseen or controlled. Yearwood v.

Yearwood, 2d Dist. Montgomery No. 16352, 1997 WL 797717, *3 (Dec. 31, 1997). Of

importance here are the words “no longer,” which refer to a change subsequent to the

entry of the judgment. Hash (Krumm) v. Hash, 2d Dist. Montgomery No. 16855, 1998

WL 211893, *5 (May 1, 1990), quoting Wurzelbacher v. Kroeger, 40 Ohio St.2d 90, 92,

320 N.E.2d 666 (1974).

{¶ 26} Tamela’s own testimony demonstrated that there were no unforeseen

events subsequent to the entry of the decree affecting the TSP funds. Indeed, her

testimony indicated that the actual issue surrounding the TSP concerned the

interpretation of the language contained in the separation agreement. Specifically,

Tamela testified it was her understanding, based upon conversations with her attorney,

she would receive the entirety of the TSP account, as valued at the date of the decree,

upon Michael’s death. In other words, she testified that she and Michael had agreed she
 -14-

would waive her right to receive the account in 2014, and that she would, instead, take

the account at the time of his death. She further testified that she wanted the court to

amend the separation agreement to reflect such an understanding.

{¶ 27} Tamela did not allege any unforeseen event which had rendered the

separation agreement inequitable. Instead, she wished to have the agreement amended

to comport with her stated understanding of the parties’ intent. However, as stated, she

was represented by counsel and her counsel drafted the agreement. Civ.R. 60(B)(4)

was not the proper vehicle for relief from her attorney’s poorly drafted provision.

{¶ 28} In seeking Civ.R. 60(B) relief from a decree of dissolution and incorporated

separation agreement, the moving party “is essentially asking to be released from his or

her own promise.” In re McLoughlin v. McLoughlin, 10th Dist. Franklin No. 05AP-621,

2006-Ohio-1530, ¶ 24. Thus, the court must ensure that relief under Civ.R. 60(B) is

justified and is not being used “to circumvent the terms of a settlement agreement simply

because, with hindsight, [the moving party] has thought better of the agreement which

was entered into voluntarily and deliberately.” Id. at ¶ 25, quoting Biscardi v. Biscardi,

133 Ohio App.3d 288, 292, 727 N.E.2d 949 (7th Dist.1999). As the domestic relations

court in this case aptly stated:

The issue in this case is not that of a willful non-disclosure of assets or

ignorance of the assets. What this case ultimately boils down to is a poorly

drafted provision in the parties’ Separation Agreement that was drafted by

Wife’s attorney and does not reflect what Wife states she intended. While

the provision names Wife the beneficiary of the fund, it does not state the

amount to which Wife is entitled, it does not preserve any funds for Wife,
 -15-

nor does it prohibit Husband from using the funds. The provision merely

states, “Further, the Thrift Savings Plan presently in Husband’s name, shall

remain in his name and the Wife shall be named as the recipient

(beneficiary) thereon.” Wife was represented in this case while Husband

was not. Wife was in the best position to evaluate and negotiate the terms

of the Separation Agreement. Wife cannot now rely on Civ.R. 60(B)(5) to

vacate her voluntary, deliberate choice to enter into an agreement merely

because hindsight reveals she may not have made a wise choice.”

Order (Dec. 3, 2020).

{¶ 29} Moreover, a review of the separation agreement does not reveal it to be

patently unfair or unconscionable. The agreement stated that the parties would equally

divide all their checking and savings accounts, household goods, furnishings and

personal property. Further, the agreement specified that Tamela would receive the

marital residence which, at the time, had an equitable value of approximately $93,000.

Also, despite the fact that Tamela’s income exceeded Michael’s, Michael was required to

pay her the sum of $500 per month in spousal support.7 The record shows Michael’s

TSP was valued at $140,000 at the time of the dissolution. Tamela received $93,000 in

equity value of the marital residence and received approximately $17,000 in spousal

support. Thus, the difference between the value of the TSP and assets/support received

by Tamela was approximately $30,000. We cannot say this division was inequitable.

{¶ 30} After a review of the record before us, we find that Tamela failed to

demonstrate that she was entitled to relief from judgment under Civ.R. 60(B)(4) or (5).

7
The record shows spousal support was paid until April 2017 when Tamela remarried.
 -16-

Further, we find that the trial court acted wholly within its discretion in denying her motion

for relief from judgment. Accordingly, the first assignment of error is overruled.

III. Contempt Motion

{¶ 31} Tamela’s second assignment of error states:

THE TRIAL COURT ERRED AS A MATTER OF LAW AND/OR ITS

FINDINGS WERE AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE IN FAILING TO HOLD APELLEE IN CONTEMPT WHEN HE

FAILED TO FOLLOW THE RULES OF THIS HONORABLE COURT BY

HONESTLY DISCLOSING ALL PERTINENT FINANCIAL ACCOUNTS AS

MARTIAL [SIC] PROPERTY.

{¶ 32} Although this assignment of error states that the court should have held

Michael in contempt for failing to properly disclose his assets, we note that the motion for

contempt and the evidence presented in support of it focused solely on Michael’s rollover

of the TSP assets into a Charles Schwab retirement account and his subsequent failure

to designate Tamela as the beneficiary of that account. Not surprisingly, the magistrate

and the domestic relations court evaluated the motion accordingly. Thus, to the extent

Tamela raises Michael’s failure to disclose the TSP account as a basis for a contempt

finding, we may not consider it, as that issue was not raised in the court below.

{¶ 33} As stated above, the sole provision in the separation agreement pertaining

to the TSP stated: “[f]urther, the Thrift Savings Plan presently in the Husband’s name

shall remain in his name and the Wife shall be named as the recipient (beneficiary)

thereon.” There is no dispute that, in October 2018, Michael did roll the funds in the TSP
 -17-

into a retirement account with Charles Schwab, and he named the parties’ son as the

beneficiary of the account. The record also shows that on February 20, 2019, following

a scheduling conference with the court regarding the show cause motion, Michael

corrected the beneficiary designation to make Tamela the beneficiary.

{¶ 34} “A person guilty of any of the following acts may be punished as for a

contempt: (A) Disobedience of, or resistance to, a lawful writ, process, order, rule,

judgment, or command of a court or an officer[.]” Morgan v. Morgan, 2d Dist.

Montgomery No. 23371, 2010-Ohio-1685, ¶ 28, quoting R.C. 2705.02(A). “This includes

dissolution decrees.” Id., citing Felton v. Felton, 79 Ohio St.3d 34, 38, 679 N.E.2d 672

(1997). “The decision of whether to find one in contempt of court rests in the sound

discretion of the trial court and will not be overturned on appeal absent an abuse of that

discretion.” Id., citing State v. Kilbane, 61 Ohio St.2d 201, 400 N.E.2d 386 (1980),

paragraph one of the syllabus.

{¶ 35} The magistrate’s decision indicates that the denial of the motion for

contempt was based upon a finding that Michael’s actions had not been willful. 8

However, a finding of contempt “does not require proof of purposeful, willing, or intentional

violation of a trial court's prior order.” Brock v. Brock, 12th Dist. Clermont No. CA2013-

04-026, 2014-Ohio-350, ¶ 19, quoting Townsend v. Townsend, 4th Dist. Lawrence No.

08CA9, 2008-Ohio-6701, ¶ 27, citing Pugh v. Pugh, 15 Ohio St.3d 136, 140, 472 N.E.2d

1085 (1984). Thus, the question of whether Michael acted willfully was not dispositive

of this issue.

{¶ 36} We find the following language in the magistrate’s decision to be a more

8
The court adopted this finding.
 -18-

accurate basis for denying the motion:

In reading the plain language of the provision, the Magistrate finds

that Michael was not required to maintain the account or any amount of

money in that account for Tamela’s benefit. Nothing prohibited Michael

from spending the money in the account or transferring the money into

another account. Tamela’s interest was limited to the remainder, if any, if

Michael predeceased her. The language was even clarified so that

recipient would be construed as beneficiary.

While naming Tamela as beneficiary was limited to the Thrift Savings

Plan, Michael agreed that the spirit of the agreement was that Tamela would

be the beneficiary of any funds remaining from the Thrift Savings Plan * * *

that he * * * transferred [to another fund]. Michael agreed to list Tamela as

the beneficiary of the Schwab account and to pay her the sum of $250.00

for her expenses. Michael shall continue to name Tamela as the

beneficiary of any fund that the original TSP monies are deposited in.

Magistrate’s Decision and Order (Aug. 6, 2020).

{¶ 37} “It is well settled that for a person to be held in contempt of a court order,

the court order must contain the specificity necessary for the person to ‘readily know

exactly what duties or obligations are imposed upon him.’ ” In re Contempt of Scaldini,

8th Dist. Cuyahoga No. 90889, 2008-Ohio-6154, ¶ 18, quoting Highland Square Mgmt.,

Inc. v. Willis & Linnen Co., L.P.A., 9th Dist. Summit Nos. 21234 and 21243, 2003-Ohio-

2630. “Otherwise stated, ‘[a] trial court cannot impose contempt sanctions on a party if

the party cannot know whether or not its actions violate the trial court's order.’” Id.,
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quoting Contos v. Monroe County, 7th Dist. Monroe No. 04 MO 3, 2004-Ohio-6380.

Accord Carmosino v. Carmosino, 12th Dist. Clermont No. CA2018-01-002, 2018-Ohio-

3010, ¶ 11.

{¶ 38} Clearly, the language in the separation agreement regarding the TSP was

susceptible to more than one interpretation, was ambiguous as to Michael’s ability to

move the funds, and was even ambiguous as to Michael’s responsibility to discontinue

designating Tamela as the beneficiary once the funds were moved out of the TSP. Given

the lack of clarity in the separation agreement, we cannot say the court abused its

discretion when it denied the motion for contempt.

{¶ 39} The second assignment of error is overruled.

IV. Conclusion

{¶ 40} Both of Tamela’s assignments of error being overruled, the judgment of the

domestic relations court is affirmed.

.............

HALL, J. and EPLEY, J., concur.

Copies sent to:

Thomas M. Kollin
Catherine H. Breault
Hon. Cynthia Martin