COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72548 SURINDER DHILLON : ACCELERATED DOCKET : Plaintiff-Appellee : JOURNAL ENTRY : vs. : AND : JAGBIR SINGH DHILLON : OPINION : Defendant-Appellant : : PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 9, 1997 CHARACTER OF PROCEEDING: Civil appeal from Domestic Relations Case No. DR-244330 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: JOSEPHINE V. GRIMM TERRY A. BRYER Grimm & Bryer Stage House II Building 8879 Brecksville Road Brecksville, Ohio 44141 For Defendant-Appellant: STANLEY MORGANSTERN Morganstern, MacAdams & DeVito The Burgess Building, Suite 400 1406 West Sixth Street Cleveland, Ohio 44113 -2- PER CURIAM: Jagbir Singh Dhillon, the husband, appeals from a denial of his motion for relief from judgment where he sought to vacate terms of the separation agreement which the court incorporated into its decree of divorce involving him and his former spouse, Surinder Dhillon. For the following reasons, we have determined this appeal is meritorious and we remand the matter to the court for modification of the term of the divorce decree in accordance with this opinion. The record reflects the parties were married in the United Kingdom in 1967, that they have raised two children, Jabprit, 29, who, with his wife, lives with his mother, and Lena, 21, a medical student in India. The parties appeared in court for trial on May 20, 1996, and, with assistance of their respective counsel, negotiated a separation agreement which the court filed with its divorce decree on May 29, 1996. Thereafter, on September 13, 1996, the husband filed a motion to vacate the decree alleging that his spouse misrepresented the status of certain loans made to her in connection with Lena's education; that the parties relied on the contribution amount rather than the present value of the wife's PERS pension account; and further urging that the court did not resolve ownership of the Merrill Lynch and Stellar Fund investment shares in its decree. The magistrate considered the matter and recommended the motion be denied. The court adopted the magistrate's decision and denied the -3- motion, and from that order husband now appeals and raises one assignment of error for our review. It states: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DENYING DEFENDANT-APPELLANT'S CIV.R. 60(B) MOTION. The husband contends the court abused its discretion by denying the motion for relief from judgment because evidence exists that his wife fraudulently misled the court regarding an existing $31,000 debt she allegedly owed; that counsel for both parties erroneously utilized the $73,000 contribution amount of the wife's PERS account rather than its $273,212 present value, resulting in an inequitable property division; and, because the court failed to establish the ownership of the Merrill Lynch and Stellar Fund accounts or consider these in its division of marital property. The wife asserts the trial court did not abuse its discretion because she presented evidence that she continued to owe the $31,000 debt; she disclosed the amount of her PERS contribution at the time the parties negotiated the separation agreement; and at the time, the court knew that the stock and investment accounts belonged to Lena, the parties' daughter, and, therefore, were not subject to division as marital property. The issue presented for our consideration concerns whether the trial court abused its discretion in denying the motion for relief from judgment. Ohio Civ.R. 60(B) states in relevant 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 or proceeding for the following reasons: 1) mistake, inadvertence, surprise or excusable neglect;***(3) fraud ***, misrepresentation or other -4- conduct of an adverse party; *** or (5) any other reason justifying relief from the judgment.***. In GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus, the court held: 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 is made within a reasonable time, ***. Here, the substantive law with which we are concerned is contained in R.C. 3105.17.1 which states in relevant part: (C)(1) *** the division of marital property shall be equal. If an equal division of marital property would be inequitable, the court shall not divide the marital property equally but instead shall divide it between the spouses in a manner the court determines equitable. *** In this case, the record reflects that the wife factually misrepresented the amount she owed to Narjit Rampal as $12,000, when she only owed him $1000; and, although she testified under oath at deposition she owed Surjit Chauhan $20,000, she had repaid him in full on October 20, 1995; she falsely represented these as outstanding debts at the time the separation agreement was negotiated. This misrepresentation is material and obligates the court to grant relief and revisit the issue of her debt with accurate representations, regardless of her claim that this same amount of money is now owed to a different lender. Parties are obligated to truthfully disclose information to the court and the court is expected to exact accuracy from all litigants. In Hoyt v. Hoyt (1990), 53 Ohio St.3d 177, paragraph one of the syllabus states: -5- When considering a fair and equitable distribution of pension or retirement benefits in a divorce, the trial court must apply its discretion based upon the circumstances of the case, the status of the parties, the nature, terms and conditions of the pension or retirement plan, and the reasonableness of the result. Here, in support of the Motion for Relief from Judgment, appellant presented an affidavit from David Kelley, who estimated the present value of the wife's PERS account as of May 29, 1996 was $273,112.18, $200,000 more than the figure used by the parties in negotiating the separation agreement and by the court in dividing the marital property. This resulted in an unfair and inequitable distribution of these pension benefits. Because of the gross inequity in asset distribution, the court should have granted the motion for relief and adjusted this part of its decree. Finally, appellant complains that the court did not adjudicate the Merrill Lynch and Stellar Fund accounts. R.C. 3105.17(B) requires the court to divide marital and separate property of the parties. Appellant has presented a meritorious claim by demonstrating that the court failed to consider these accounts which are jointly owned by the wife and her daughter, Lena. It is incumbent on the court to make a determination regarding ownership and/or distribution of these assets as marital, separate or nonmarital property. For the foregoing reasons, the appellant's assignment of error is well taken and the matter is remanded for the court to reconsider these issues. Reversed and remanded. -6- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said 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. ANN DYKE, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE JOHN T. PATTON, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .