COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68759 GALE KIEDIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ROBERT KIEDIO : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 2, 1995 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Court, No. D-231536. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Wallace R. Steffen, Esq. 330 Standard Building 1370 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: James M. Hungerford, Esq. James M. Hungerford Co., L.P.A. 2424 Broadview Road Cleveland, OH 44109 -2- DAVID T. MATIA, J.: Robert Kiedio, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas. Domestic Relations Division, which ordered defendant-appellant to pay his ex-wife, Gale Kiedio, plaintiff-appellee, a monthly installment equal to her estimated health insurance premium. Defendant-appellant assigns four errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS Robert Kiedio, defendant-appellant, and Gale Keidio, plaintiff- appellee, were married on July 9, 1988 in Cleveland, Ohio. No children were born as issue of the marriage. On February 17, 1994, Gale Kiedio, plaintiff-appellee, filed her complaint for divorce in the Cuyahoga County Court of Common Pleas, Domestic Relations Division, alleging gross neglect of duty and incompatibility as grounds for the divorce. The case was scheduled for a bench trial on December 5, 1994. At that time, the parties entered into an in-court settlement agreement which was put on the record, transcribed and made part of the trial court's journal entry of divorce. (Vol. 2549, pp. 20- 46.) On December 30, 1994, Gale Kiedio, plaintiff-appellee, filed a motion for reconsideration of the trial court's proposed final judgment entry of divorce. In her motion, plaintiff-appellee alleged that, unbeknownst to her, Robert Kiedio, defendant- appellant, had cancelled her health insurance policy in March, -3- 1994. Defendant-appellant's cancellation of plaintiff-appellee's health insurance not only left her without health coverage but also precluded plaintiff-appellee from obtaining her own coverage under C.O.B.R.A. (Consolidated Omnibus Budget Reconciliation Act, enacted 4-7-86). This was the first time this fact was brought to the attention of the trial court. Defendant-appellant failed to respond to plaintiff-appellee's motion for reconsideration. On February 6, 1995, the trial court issued and journalized the final judgment entry of divorce which incorporated in its entirety the terms and provisions of the December 5, 1994 in-court settlement agreement. In addition, the trial court's judgment entry contained the following provision and order relating to Gale Kiedio's health insurance situation: The Court finds that Motion #259648 filed December 30, 1994 by Plaintiff alleging notice of cancellation of Defendant's health insurance subsequent to the December 5th Court hearing depriving Plaintiff of her right under COBRA and that Defendant has failed to respond to same, necessitate the following order, to wit: IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant pay to Plaintiff, at his cost and expense, the monthly equivalent of the COBRA premium which Plaintiff would have been required to pay had Defendant not cancelled his insurance as alleged in said motion; that said monthly payment shall begin with the date of this entry and continue for a period of three (3) years hence forward. On February 21, 1995, Robert Kiedio, defendant-appellant filed the following motions: 1) For Reconsideration of Judgment; -4- 2) To Vacate Judgment; 3) For New Trial; 4) For Stay of Proceedings; 5) For Sanctions; and 6) Request for Attorney Conference. The focal point of defendant-appellant's motions was the trial court's order relating to payment for Gale Kiedio's, plaintiff- appellee's, health insurance coverage. On March 8, 1995, the trial court overruled all defendant-appellant's motions. On March 31, 1995, Robert Kiedio, defendant-appellant, filed a timely notice of appeal from the judgment of the trial court. Both parties filed separate statements of evidence or procedures pursuant to App.R. 9(C). On May 10, 1995, the trial court adopted Gil Kiedio's, plaintiff-appellee's, statement of evidence or procedures pursuant to App.R. 9(C). On May 23, 1995, the record from the trial court was transmitted to the court of appeals. II. FIRST AND SECOND ASSIGNMENTS OF ERROR Robert Kiedio's, defendant-appellant's, first assignment of error states: THE TRIAL COURT ERRED IN AWARDING SPOUSAL SUPPORT TO THE PLAINTIFF IN ITS JUDGMENT ENTRY OF DIVORCE DATED FEBRUARY 6, 1995. Robert Kiedio's, defendant-appellant's, second assignment of error states: THE TRIAL COURT ERRED IN UNILATERALLY MODIFYING THE PARTIES' IN-COURT SETTLEMENT AGREEMENT OF DECEMBER 5, 1994 PARTICULARLY -5- WITHOUT FIRST CONDUCTING AN EVIDENTIARY HEARING UPON ALL OF THE ISSUES TO BE ADDRESSED IN ITS JUDGMENT ENTRY OF DIVORCE. Having a common basis in both law and fact, this court shall consider defendant-appellant's first and second assignments of error concurrently. A. THE ISSUE RAISED: MODIFICATION OF SETTLEMENT AGREEMENT. Defendant-appellant argues, through his first and second assignments of error, that the trial court incorrectly modified the in-court settlement agreement to provide for a monthly payment equivalent to plaintiff-appellee' estimated monthly insurance premium. Specifically, defendant-appellant maintains that the trial court abused its discretion in awarding spousal support without conducting an evidentiary hearing and by failing to determine a specific amount for the monthly payment. Defendant-appellant's first and second assignments of error are not well taken. B. STANDARD OF REVIEW FOR ABUSE OF DISCRETION. The trial court's decision to modify the in-court settlement agreement will not be disturbed on appeal unless it is clear that the trial court's decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. As stated by the Ohio Supreme Court in Blakemore: The term "abuse of discretion" was defined by this court in State v. Adams (1980), 62 Ohio St.2d 151, 157 [16 O.O.3d 169]: "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is -6- unreasonable, arbitrary or unconscionable. Steiner v. Custer (1940), 137 Ohio St. 448 [19 O.O. 148]; Conner v. Conner (1959), 170 Ohio St. 85 [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget Comm. (1976), 48 Ohio St.2d 372 [2 O.O.2d 484]." Id. at 219. C. STANDARD OF REVIEW FOR IN-COURT SETTLEMENT AGREEMENTS. A trial court's authority to enforce in-court settlement agreements is discretionary in nature. Spercel v. Sterling Industries, Inc. (1972), 31 Ohio St.2d 36. The discretionary standard applies to domestic relations cases as well. Holland v. Holland (1970), 25 Ohio App.2d 98; Bauer v. Bauer (April 2, 1981), Cuyahoga App. No. 42805, unreported. This court has held that an in-court settlement agreement is enforceable, even when a party asserts a mistake because he thought the agreement was only a proposal subject to further negotiation. Burley v. Burley (June 18, 1981), Cuyahoga App. No. 41913, unreported; Kelley v. Kelley (1991), 76 Ohio App.3d 505, 510. The enforceability of an in-court settlement agreement depends upon whether the parties have manifested an intention to be bound by its terms and whether these intentions are sufficiently definite to be specifically enforced. Normandy Place Assoc. v. Beyer (1982), 2 Ohio St.3d 102, 105-106. D. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY MODIFYING THE SETTLEMENT AGREEMENT. In the case sub judice, the record clearly demonstrates that both parties intended for the in-court settlement agreement to be a final settlement of all issues in the case. However, before -7- final journalization of the in-court settlement, plaintiff- appellee informed the trial court through her motion to reconsider the trial court's proposed judgment entry that defendant-appellant had surreptitiously cancelled plaintiff- appellee's health insurance coverage. Defendant-appellant did not respond to plaintiff-appellee's motion to reconsider. The trial court, after noting that defendant-appellant failed to respond to plaintiff-appellee's motion to reconsider, found that defendant-appellant's cancellation of plaintiff-appellee's health coverage effectively precluded plaintiff-appellee from obtaining coverage under the auspices of C.O.B.R.A. and ordered defendant-appellant to pay a monthly payment equaling the plaintiff-appellee's estimated health insurance premium. Clearly, the trial court was attempting to prevent defendant- appellant from benefiting through secretly cancelling his ex- wife's health insurance coverage during the pendency of the divorce proceedings in domestic relations court. Under the circumstances, it cannot be said that the trial court's action constituted an abuse of discretion. This is particularly true in light of the fact that defendant-appellant does not dispute being properly served with plaintiff-appellee's motion and still failed to file a timely response or otherwise dispute the allegations raised by plaintiff-appellee. Defendant-appellant's first and second assignments of error are not well taken. -8- III. THIRD ASSIGNMENT OF ERROR Robert Kiedio's, defendant-appellant's, third assignment of error states: THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S MOTIONS FOR RECONSIDERATION OF JUDGMENT AND TO VACATE JUDGMENT, ETC. FILED FEBRUARY 21, 1995, PARTICULARLY SINCE THE TRIAL COURT DID NOT FIRST CONDUCT AN EVIDENTIARY HEARING UPON SUCH ISSUES. A. THE ISSUE RAISED: MOTION TO VACATE. Defendant-appellant, through his third assignment of error, argues that the trial court erred in overruling the multiple motions filed by defendant-appellant on February 21, 1995. Specifically, defendant-appellant maintains that the trial court erred in overruling the motions to reconsider and to vacate without first conducting an evidentiary hearing. However, since a motion to reconsider a final judgment is a nullity in the context of civil litigation, Pitts v. Dept. of Transportation (1981), 67 Ohio St.2d 378, paragraph one of the syllabus, this court will only consider defendant-appellant's argument as it relates to the motion to vacate judgment. Defendant-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW FOR MOTION TO VACATE PURSUANT TO CIV.R. 60(B). Civ.R. 60(B) governs motions for relief from judgment and provides in part: On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order -9- 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. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. The Ohio Supreme Court has summarized the requirements necessary to warrant relief from judgment pursuant to Civ.R. 60(B) as follows: To prevail on a motion brought under Civ.R. 60(B), the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion was made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after judgment, order or proceeding was entered and taken. GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146 syllabus at paragraph two. The failure by a moving party to establish any one of these three (3) elements warrants denial of the motion for relief from judgment. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20. Mount Olive Baptist Church v. Pipkins Paints (1979), 64 Ohio App.2d 285. -10- The determination as to whether to grant a Civ.R. 60(B) motion for relief from judgment is within the sound discretion of the trial court and will not be reversed upon appeal absent an abuse of discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75. In this instance, the trial court's ruling on defendant-appellants' motion for relief from judgment will not be disturbed unless it is clear that the decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, supra. In addition, a party is not entitled to an evidentiary hearing on a Civ.R. 60(B) motion unless that party has alleged sufficient operative facts to establish that they are entitled to relief. Bates & Springer, Inc. v. Stallworth 91978), 56 Ohio App.2d 223. It is within the sound discretion of the trial court to decide whether a hearing on a Civ.R. 60(B) motion will be conducted. First Bank National Association v. Fudge (Mar. 9, 1995), Cuyahoga App. No. 67115, unreported. C. TRIAL COURT PROPERLY DENIED DEFENDANT-APPELLANT'S CIV.R. 60(B) MOTION. In the present case, defendant-appellant's motion to vacate judgment pursuant to Civ.R. 60(B) failed to contain an allegation of operative fact which would satisfy the first element of GTE Automatic, specifically that defendant-appellant had a meritorious claim or defense to present if relief were granted. Nowhere in defendant-appellant's motion does defendant-appellant challenge plaintiff-appellee's assertion that her health insurance coverage was cancelled. Having failed to comply with -11- an element of GTE Automatic, the trial court did not abuse its discretion in denying the motion without first conducting an evidentiary hearing. Defendant-appellant's third assignment of error is not well taken. IV. FOURTH ASSIGNMENT OF ERROR Robert Kiedio's, defendant-appellant's, fourth and final assignment of error states: THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION FOR SANCTIONS UNDER O.R.C. 2323.51 AS WELL AS RULE 11 OF THE OHIO RULES OF CIVIL PROCEDURE FILED FEBRUARY 21, 1995, PARTICULARLY SINCE THE TRIAL COURT DID NOT CONDUCT AN EVIDENTIARY HEARING UPON SUCH ISSUES. A. THE ISSUE RAISED: SANCTIONS PURSUANT TO R.C. 2323.51 AND CIV.R. 11. Defendant-appellant, through his fourth and final assignment of error, argues that the trial court improperly overruled his motion for sanctions. Specifically, defendant-appellant maintains that plaintiff-appellee engaged in numerous filings and conduct which was, on its face, frivolous under both R.C. 2323.51 and Civ.R. 11. Defendant-appellant's fourth assignment of error is not well taken. B. STANDARD OF REVIEW FOR SANCTIONS. This court has found that the issues of frivolity of claims and appropriate sanctions are governed by R.C. 2323.51 and Civ.R. 11. Toth v. Toth (1994), 94 Ohio App.3d 561, 565. R.C. 2323.51 states in relevant part as follows: -12- (2) "Frivolous conduct" means conduct of a party to a civil action or of his counsel of record that satisfies either of the following: (a) It obviously serves merely to harass or maliciously injure another party to the civil action; (b) It is not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law. (B)(1) Subject to divisions (B)(2) and (3), (C), and (D) of this section, at any time prior to the commencement of the trial in a civil action or within twenty-one days after the entry of judgment in a civil action, the court may award reasonable attorney's fees to any party to that action adversely affected by frivolous conduct. The award may be assessed as provided in division (B)(4) of this section. (2) An award of reasonable attorney's fees may be made pursuant to division (B)(1) of this section upon the motion of a party to a civil action, but only after the court does all of the following: (a) Sets a date for a hearing to determine whether particular conduct was frivolous, whether any party was adversely affected by it, and to determine, if an award is to be made, the amount of that award; (b) Gives notice of the date of the hearing described in division (B)(2)(a) of this section to each party or counsel of record who allegedly engaged in frivolous conduct and to each party allegedly adversely affected by frivolous conduct; (c) Conducts the hearing described in division (B)(2)(a) of this section, allows the parties and counsel of record involved to present any relevant evidence at the hearing, including evidence of the type described in division (B)(5) of this section, determines that the conduct in question was frivolous and that a party was adversely affected by -13- it, and then determines the amount of the award to be made. Civ.R. 11 states in relevant part as follows: The signature of an attorney or pro se party constitutes a certificate by the attorney or party that the attorney or party has read the document; that to the best of the attorney's or party's knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a document is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the document had not been served. For willful violation of this rule an attorney or pro se party, upon motion of a party or upon the court's own motion, may be subjected to appropriate action, including an award to the opposing party of expenses and reasonable attorney fees incurred in bringing any motion under this rule. A trial court's decision to impose sanctions pursuant to R.C. 2323.51 and Civ.R. 11 will not be reversed absent an abuse of discretion. State ex rel. Fant v. Sykes (1987), 29 Ohio St.3d 17. The question of whether a pleading is warranted under existing law or can be justified by a good faith argument for an extension, modification or reversal of existing law is a question of law subject to a de novo review. Passmore v. Greene Cty. Board of Elections (1991), 74 Ohio App.3d 707; Toth v. Toth, supra. C. THE TRIAL COURT DID NOT ERR IN OVERRULING THE MOTION FOR SANCTIONS. In this case, the record from the trial court fails to support defendant-appellant's assertion that sanctions should have been awarded against plaintiff-appellee. There is no evidence to -14- demonstrate that any of the motions which defendant-appellant refers to as frivolous were intended to harass or maliciously injure defendant-appellant. In fact, a good faith argument did exist for the filing of each motion about which defendant- appellant complains. Accordingly, there was no basis for the imposition of sanctions pursuant to R.C. 2323.51 or Civ.R. 11 and the trial court properly overruled defendant-appellant's motion. Defendant-appellant's fourth and final assignment of error is not well taken. Judgment of the trial court is affirmed. -15- It is ordered that appellee recover of appellant her costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Domestic Relations Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, C.J. and BLACKMON, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .