[Cite as Cornett v. Cornett, 2016-Ohio-7902.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
CHARLOTTE CORNETT :
: Appellate Case No. 2016-CA-7
Plaintiff-Appellant :
: Trial Court Case No. 2012-DR-251
v. :
: (Domestic Relations Appeal from
JAMES CORNETT : Common Pleas Court)
:
Defendant-Appellee :
:
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OPINION
Rendered on the 23rd day of November, 2016.
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JAY A. ADAMS, Atty. Reg. No. 0072135, 36 North Detroit Street, Xenia, Ohio 45385
Attorney for Plaintiff-Appellant
KEITH R. KEARNEY, Atty. Reg. No. 0003191, and AMY R. BLAIR, Atty. Reg. No.
0073760, Rogers & Greenberg LLP, 40 North Main Street, Suite 2160, Dayton, Ohio
45423
Attorneys for Defendant-Appellee
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FAIN, J.
{¶ 1} Plaintiff-appellant Charlotte Cornett appeals from an order of the Greene
County Court of Common Pleas, Division of Domestic Relations, overruling her motion
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for relief under Civ.R. 60(B) from a judgment of divorce incorporating a separation
agreement. Ms. Cornett contends that the agreed judgment of divorce is both
inequitable and the product of ineffective assistance of her trial counsel. We conclude
that the record does not support her contentions. Accordingly, the order of the trial court
overruling Ms. Cornett’s motion for relief from judgment is Affirmed.
I. The Course of Proceedings
{¶ 2} Charlotte and James Cornett were married in 1965. Ms. Cornett initiated
divorce proceedings in 2012. At a hearing before a magistrate, the parties entered into
a settlement agreement. The agreement, which encompassed spousal support as well
as the division of property and debts, was read into the record. Both parties stated on
the record, in the presence of their counsel and the magistrate, that they understood the
terms of the agreement, and indicated their wish to have the agreement incorporated into
the final decree of divorce. A Final Judgment and Decree of Divorce, incorporating the
agreement, and signed by both parties and their attorneys, was entered in July 2013.
{¶ 3} In February 2014, Ms. Cornett moved for relief from judgment pursuant to
Civ.R. 60(B). She contended that she was induced to enter into the separation
agreement due to bad advice from her attorney. Specifically, she claimed that counsel
did not properly advise her with regard to the duration of the marriage, which she argues
had a de facto termination date of 1987, as it relates to marital and non-marital assets
and the division thereof. She further claimed that her attorney informed her that the trial
court would not accept the 1987 date of separation as the termination date for the
marriage, but would use use the entire length of the marriage in making the division. She
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claimed that she only entered into the separation agreement because she felt that she
had no other choice, due to ineffective assistance of counsel. She further claimed that
the separation agreement was not equitable.
{¶ 4} At the hearing on her motion for relief from judgment, Ms. Cornett presented
testimony regarding the parties’ relationship and living arrangements following the 1987
separation, as well as testimony and exhibits regarding her assets. Following the
hearing, the magistrate found that Ms. Cornett had failed to demonstrate that she was
entitled to relief under any of the grounds set forth in Civ.R. 60(B). The magistrate
therefore found it unnecessary to determine whether she could present a meritorious
defense or claim. Ms. Cornett’s objections to the magistrate’s decision were overruled,
and the trial court adopted that decision as the order of the court. Ms. Cornett appeals
from the order of the trial court overruling her motion for relief from judgment.
II. The Agreed Judgment of Divorce Is Neither Inequitable nor the Product of
Ineffective Assistance of Counsel
{¶ 5} Ms. Cornett’s sole assignment of error is as follows:
THE TRIAL COURT ERRED IN SUSTAINING THE DECISION OF
THE MAGISTRATE IN OVERRULING THE OBJECTIONS AND MOTION
FOR RELIEF PURSUANT TO CIVIL RULE 60(B).
{¶ 6} Ms. Cornett contends that the trial court abused its discretion by overruling
her motion for Civ.R. 60(B) relief. The essence of her argument is that the separation
agreement should be set aside because counsel induced her to enter into it with
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erroneous legal advice, and because its terms are inequitable.
{¶ 7} Civ.R. 60(B) states that “[o]n motion and upon such terms as are just, the
court may relieve a party or his legal representative from a final judgment, order 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.”
{¶ 8} In order to grant relief on a Civ.R. 60(B) motion for relief from judgment, a
trial court must find that the movant has demonstrated: (1) the existence of a meritorious
defense or claim; (2) entitlement to relief under one of the grounds set forth in the Rule;
and (3) that the motion is made within a reasonable time. GTE Automatic Elec., Inc. v.
ARC Industries, 47 Ohio St.2d 146, 150–51, 351 N.E.2d 113 (1976).
{¶ 9} The decision to sustain or overrule a motion for relief from judgment is within
the sound discretion of the trial court, and will not be disturbed absent an abuse of
discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514 N.E.2d 1122 (1987). In order to
find an abuse of discretion, the reviewing court must find that the trial court demonstrated
an arbitrary, unreasonable, or unconscionable attitude. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 218, 450 N.E.2d 1140 (1983).
{¶ 10} While the magistrate and the trial court addressed all five possible grounds
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for setting aside a judgment as set forth in Civ.R. 60(B), we need only address Civ.R.
60(B)(1) and (5), since those are the only two raised in Cornett’s motion and in her brief
on appeal.
{¶ 11} Civ.R. 60(B)(1) encompasses mistake, inadvertence, surprise, or excusable
neglect. Because “the neglect of a party’s attorney will be imputed to the party for the
purposes of Civ.R. 60(B)(1), * * * any ‘mistake, inadvertence, surprise, or excusable
neglect,’ as set forth in Civ.R. 60(B)(1), by counsel for a party does not entitle that party
to relief from judgment under the rule.” Argo Plastic Products Co. v. City of Cleveland,
15 Ohio St.3d 389, 393, 474 N.E.2d 328 (1984), syllabus and 393. In other words, “if an
attorney’s conduct falls substantially below what is reasonable under the circumstances,
the client’s remedy is against the attorney in a suit for malpractice.” Id., at 392, quoting
GTE Automatic Electric, Inc. v. ARC Industries, 47 Ohio St.3d 146, 152, 351 N.E.2d 113
(1976).
{¶ 12} Ms. Cornett’s argument is based upon her claim that counsel rendered bad
legal advice, and also caused her to believe that she had no choice but to settle the case
on the terms proposed. This is, in essence, a claim of legal malpractice, which is not
recognized as a basis for relief under Civ.R. 60(B)(1). Office v. Office, 2d Dist.
Montgomery No. 18693, 2001 WL 958935, * 3 (Aug. 24, 2001).
{¶ 13} Civ.R. 60(B)(5) cannot be used as a substitute for one of the more specific
grounds provided in the rule; therefore, an attorney’s ineffectiveness does not provide a
basis for setting aside a judgment under this section. Id. However, this court has
recognized that “the extraordinary nature of a particular case could justify relief under
Civ.R. 60(B)(5).” Id., citing Whitt v. Bennett, 82 Ohio App.3d 792, 613 N.E.2d 667 (2d
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Dist. 1992). But, “[i]n order for an attorney’s conduct to fall outside the purview of Civ.R.
60(B)(1), and to be considered an extraordinary circumstance contemplated by Civ.R.
60(B)(5), the conduct must ‘reveal[ ] a complete disregard for the judicial system.’ [Citation
omitted]. In other words, the attorney’s conduct must be egregious; for example, conduct
rising to the level of abandonment.” Smith v. Gilbert, 2d Dist. Clark No. 2014-CA-81,
2015-Ohio-444, ¶ 15, quoting Melton v. Melton, 1st Dist. Hamilton No. C-130123, 2013-
Ohio-4790, ¶ 13.
{¶ 14} We find no support in the record for the proposition that, nor did the trial
court find that, counsel’s conduct rose to the level of a complete disregard for the judicial
system. At most, Cornett’s allegations raise the issue of legal malpractice, which does
not amount to an extraordinary circumstance under Civ.R. 60(B)(5). Office, supra, at * 3.
{¶ 15} Finally, although not addressed by the trial court in its decision, Ms. Cornett
argues that the trial court should have considered her argument that she has a meritorious
defense or claim to present. Ms. Cornett’s meritorious defense is based upon the claim
that because counsel rendered incorrect legal advice, she could not knowingly or
voluntarily have entered into the separation agreement. She also argues that because
counsel gave her incorrect legal advice, the agreement is inequitable.
{¶ 16} With regard to her claim that she did not knowingly or voluntarily enter into
the agreement, Ms. Cornett conflates acting on poor legal advice with not knowing or
understanding the terms of an agreement. In other words, Ms. Cornett may in fact have
entered into the agreement due to bad advice, but there is no evidence that she did not
know, and understand, the terms to which she agreed. Poor legal advice is not a defense
to the enforceability of a contract. Novak v. Novak, 11th Dist. Lake Nos. 2013-L-047,
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2013-L-063, 2014-Ohio-10, ¶ 32. Neither is lack of equity a defense. “Contracts,
including settlement agreements, do not need to be fair and equitable to be binding and
enforceable, so long as they are not produced by fraud, duress, overreaching or undue
influence.” Grubic v. Grubic, 8th Dist. Cuyahoga No. 73793, 1999 WL 703053, * 3 (Sept.
9, 1999).
{¶ 17} We find nothing in the record to indicate that Ms. Cornett failed to
understand the terms and meaning of the contract that she agreed. We find no evidence
of fraud, duress, or undue influence exerted by Mr. Cornett, his counsel, or the trial court,
that would cause the agreement to be unenforceable. Therefore, we conclude that her
claim of meritorious defense or claim is not supported by the record.
{¶ 18} Ms. Cornett’s sole assignment of error is overruled.
III. Conclusion
{¶ 19} Ms. Cornett’s sole assignment of error having been overruled, the order of
the trial court overruling Ms. Cornett’s motion for relief from judgment is Affirmed.
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DONOVAN, P.J., and FROELICH, J., concur.
Copies mailed to:
Jay A. Adams
Keith R. Kearney
Amy R. Blair
Hon. Steven L. Hurley