me d - supreme court of ohio and the ohio judicial system debra murphy-kesling court of appeals...

ORIGINAL

IN THE SUPREME COURT OF OHIO

MEMORANDUM IN SUPPORT OF JURISDICTION

09-1366Debra Murphy-Kesling Court of Appeals

Ninth Appellate DistrictAppellant

County of SummitCity of AkronState Of Ohio

V.

GERALD M. KESLING

Appellee

Case No. 24761

DEBRA MURPHY-KESLING,Appellant/Pro Se

2832 BROOKFIELD DRIVENORTON, OHIO 44203

330-825-7783330-714-7373

[email protected]

Leslie Graske,COUNSEL FOR APPELLEE

Collins and Graske333 S. Main St. Suite 304

Akron, Oh 44308PH 330-374-6906FX 330-374-6908

ME DJ11h 20 Z009

CLERK OF COURTSUPREME COURT OF OHIO

Table of Contents

STATEMENT OF THE CASE AND FACTS .. ........................................................................ - 5-

The Appellate Court states on page 3 of their Journal Entry/Decision that; "The DOPO wasfiled on September 15, 2003 without Appellant's signature, pursuant to Loc. R. 28.01(B) it said19.01(B) and it violates every time limit in the rules as welt as statutory time limit. The DOPOwas not a final appealable decision, and then she would have just been a vexatious litigant.Appellant did notify the court that she objected and that her attorney was in intensive care on8/7/2003. She asked for advice, they responded that they were "officers of the court and "couldnot advise" her. The court could have at least directed her to the Local Rules ............... - 8-

PROPOSITIONS OF LAW ......................................................................................................-10 -

Proposition of Law: IT IS UNCONSTITUTIONAL TO ENSLAVE A CITIZEN THROUGH

LAND, LABOR, OR GOODS ...........................................................................................11-

3105.65(B) Power of court. It is unlawfulfor the court to change, modift, clari,f,y or enforce a

post decree mutual agreement retain jurisdiction through this statute. All property must be

divided and all documentsfiled prior to thefmal decree .................................................. - 11 -

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW .. ............................ .......... .....-11-

CONCLUSION .......................................................................................................................... .16 -

1. APPENDIX ........................................................................................................................-16 -

SETTLEMENT AGREEMENT/DECREE OF DIVORCE AUGUST 21, 2002 ...............-16 -

APPELLATE DECISION JUNE 3, 2009 ............................................................................-16 -

CERTIFICATE OF SERVICE .................................................................................................17 -

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EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAI.INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

KEYWORD: HUMANITY The words of Federal Judge Shea-Stonum; "Where is the humanitv?" as

she asked of the Appellee's counsel acting on behalf of the plaintiff in the recent adversarial action he

took against the Appellant in federal bankruptcy court. This is more than a domestic relation or

financial issue. Every citizen needs to be responsible: for themselves, their actions, to, and for others. In

this case both courts are blaniing the appellant for what they were supposed. This Appellate decision

violates the Constitution: the right to property and to due process. The court officers need to be trained

to recognize cases with mental illness need court intervention assistance through the divorce process to

avoid coercion and manipulation of settlements that are merely superficial. If the court does not do their

job they will only perpetuate the emotional and financial control and dysfunction to continue. Families

dealing with personality disorders need disentanglement to stop the cycle of dysfunction.

If allowed to stand this decision will sabotage the integrity of legislative intent, mutual agreement,

contracts, the finality of divorce decrees and undermine the fixndamental principle that the law

constrains the court as well as the parties. Similarly, the public interest is affected if state statute and

case law can be judicially ignored to subvert the use of discretion in domestic relations decisions. For

the sake of stay-at-home spouses the General Assembly has determined that all parties contribute

equally in a marriage, but what if they are plain lazy. We are not a community property state, the court

is supposed to apply broad discretion to their decisions. Spouses still have the freedom to divide marital

property the way they see fit through a mutually agreed contract that is approved by the court (3501.65)

or the court can do it according to specific statutory guidelines with judicial discretion (3105.171). It is

impossible to have a mutual agreement and judicial discretion property settlement, it has to be one or the

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other, if it is by mutual agreement of the parties, the court needs to take care of it before the decree so

there is no need for surprises down the road, all documents need to be finalized before the decree. The

court cannot apply discretion to a settlement it did not hear according to statutory guideline and needs to

be barred from attempting to do so as much as the litigants. No one should be able to control another and

the court needs to be held to time limits and rules the same as the parties. Neither method excuses the

officers of the court from their responsibility.

Through O.R.C. 3307.371 we now have a form for use by the five state pension plans. It is referred to

as a DOPO and affects all state employees and makes this case one of great public interest and broad

general significance. Thousands and thousands of citizens of Ohio are affected by the lives and the work

of these public employees. However, the courts have yet to determine who is responsible for preparing

the DOPO or how to make it equal and/or equitable. Terminology is confusing and offsets are needed to

compensate for spouses with social security because they are still being manipulated by attorneys to the

advantage of their clients and unresolved issues may be altered to favor one party over the other; or may

not be found until years later. The DOPO needs to be prepared such that all parties have full knowledge

and understanding of the process and the officers of the court need to utilize judicial discretion

according to statute. The participation of the parties guarantees due process. They need to bargain

collectively over the terms, details, and conditions of the DOPO. It is too important to be considered a

trivial detail. Obviously, if only one attorney controls the DOPO he will make choices that are

beneficial to his client thus taking advantage of the other. The pension plans should reject them if they

are not signed by counsel, parties and the court to guarantee knowledge, agreement, and due process

thereby reducing post decree litigation regarding division of property. Under this requirement, the

parties would determine the terms and conditions of their intentions. The resulting DOPO will represent

the product of a time-honored process by which the litigants mutually agree on matters that jointly affect

them both for the rest of their lives.

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This is a case of fraud. The parties were coerced by all day hallway into a settlement which everyone

approved. However, intentional post decree action was used to manipulate to changes changed the

DOPO filed seventeen months later. The court could not apply discretion; the court did not hear the

case. The DOPO every principle we stand for as American's and destroys the integrity of our legal

system. This is an appeal of right that claims a substantial constitutional question: the taking of earned

property from one citizen to benefit another without due process. Moreover, the court of appeals'

decision establishes the illogical and untenable rule that the court can blame the Plaintiff for NOT

continuing litigation. The Appellant did notify the court within the ten day time period that she objected

to the magistrate fmdings, the courts orders and that her counsel was unavailable due to hospitalization.

She did so by email requesting the courts assistance and they responded that as officers of the court they

could not help: the least they could have done to protect her constitutional right to due process would

have been to send a copy of the Local Rules so she could have figured it out on her own. However, they

allowed the case to continue and a judge that may not have known about the absence of counsel signed

DOPO.

Finally, this decision of the court of appeals elevates the courts authority over the contract of the parties,

the intent and mutual agreement of the settlement and the legislative principle of `equal and equitable'

property division enacted by the General Assembly. Issues include due process, effective

representation, the essence of contract and intent of the parties in settlement agreements, equal and

equitable property division, dissolution, divorce, DOPO's, and disentanglement, thereby affecting every

divorce and state employee in Ohio. To promote the purposes and preserve the integrity of domestic

relations, divorce and dissolution actions, equal and equitable property settlements, mutual agreement

between parties, and to remove impediments to the divorce process, this court must grant jurisdiction to

hear this case and review the erroneous and dangerous decision of the court of appeals.

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STATEMENT OF THE CASE AND FACTS

When Appellant became a teacher she was required to pay into State Teachers Retirement System. She

had a good credit rating, a house and a pension but she wanted to share her life and here is the result:

Appellant filed for divorce on the grounds of incompatibility on 5/18/2001, Appellee filed a counter

claim on 6/7/2001 claiming all the reasons in the revised code. Appellant's first attorney had

disappeared and no one in the office could take over the case, second attorney file notice of appearance

without withdrawal of first according to local rule The parties reached mutual agreement and the

contract was read into the record on April 9, 2002, both parties were present and represented by counsel

and swore to the agreement. Two additional hearings had to be held: 7/11/2002 Appellant was not

notified and obviously did not to attend, no record was made, the second was 8/14/2002, both were

allegedly regarding the wording of the Journal Entry.

The Settlement Agreement/Decree of Divorce was filed August 21, 2002, both parties signed the

agreement waiving child and spousal support and both parties agreed to liquidate assets for the college

education of the children.. Appellee's income was Social Security Disability and Veteran's

Administration Disability due to long term mental illness The Settlement Agreement/Divorce Decree

filed August 21, 2002 and is attached which is the Final Appealable Order, the time period for appeal is

thirty days, thus the court did not have the right to hold post decree action on the property settlement

after September 21, 2002 and all subsequent actions were improper and must be vacated including the

DOPO filed 9/15/2003. (Wilkins v. Lorenz, 2009-Ohio-107)

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In December 2002, Appellee filed a contempt motion to compel Appellant to give him her STRS

records. authorize to obtain her STRS records and pay attorney fees. In January 2003 she gave them to

Pension Evaluators as she had agreed to in the settlement and paid to have the two pension evaluations

prepared to determine the marital portion of her STRS pension and a hypothetical social security

pension so she would be made whole for the loss of her exempt social security earnings in exchange for

Husband's social security he was already receiving. ($80,000 equaled her deduction $20,000 was his)

and requested Appellee to pay his fifty percent so they could have the DOPO prepared. However the

agreed payment was not forthcoming and the case continued. Appellant retained a third attorney who

forwarded the evaluations and attempted resolution. But merely received a fax of Appellee's' social

security evaluation on Friday, March 6, 2003 then represented her on Monday, March 10, 2003. Both

parties were left standing in the hall during the lengthy discussion and a second hearing was scheduled

to obtain a transcript of the record. This was the first Appellant even knew there WAS a social security

retirement: it was not disclosed in the Plaintiff's financial affidavit or that it could be used as an offset.

The transcript indicated the Appellant's objectives were completely ignored during the second hearing

when both parties were present and represented. The defense attorney was the only person present that

had been involvement with the Decree. Whatever transpired in the previous hearing seriously

prejudiced the magistrate before the parties even entered the room as evidenced in the transcript. Under

the principle of finality of judgments, a trial court has no authority to reopen an earlier property division

order where no appeal was taken from the prior decree and the time to appeal has run. That includes the

hearing on the DOPO in March 2003.All documents had been exchanged so there was no longer a need

for this hearing however, the opposition counsel used it circumvent the terms of the Decree to

manipulate the magistrate to let him prepare the DOPO to the advantage of his client. He even stated

that Pension Evaluators does not prepare DOPO's, and that is their business. He did not use the marital

period for the present value of the Appellee's evaluation as the Appellant had in January which he had

for two month before getting the Appellee's four days before the hearing. He did not check off disability

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knowing his client had been on it for ten years and had agreed not to take from Appellant and the Decree

stated that both parties waived their rights to spousal support. The waiver of spousal support was VERY

CLEAR but the court changed it on the DOPO: and refused to change it back when Appellant needed it

in 2007 thus the court has acted improperly, an error of law. It changed the Decree filed 8/21/2002 in the

Order of &/21/2003, again on the DOPO 9/15/2003, contradicting its' own previous Final Decree order

seventeen months later. However, it would not consider reopening the Settlement Agreement on

September 29, 2003 as it was untimely, or 2007 after major changes of circumstances as untimely back

to when they let the defense change it in 2003 and the appellate court would not review it for discretion

when the trial court never applied discretion according to 3105.171. In Seasons Coal Co. v. Cleveland

(1984), 10 Ohio St.3d 77, 81, 461 N.E.2d 1273, the Ohio Supreme Court explained: "[A] reviewing

court should not reverse a decision simply because it holds a different opinion concerning the credibility

of the evidence submitted before the trial court. A finding of an error in law is a legitiniate ground for

reversal, but a difference of opinion on credibility of witnesses and evidence is not." See, also, State v.

DeHass (1967), 10 Ohio St.2d 230. Appellant and counsel met on Apri17, 2003 and prepared the

Motion for a 60B and Appellant's affidavit, which indicates the error, was not on the part of the

Appellant. Her counsel decided to wait for the contempt verdict which took four months and then he

was hospitalized and unable to object to the findings and decision even though she was not guilty of

contempt. The court failed to issue the JE for four months.

On July 21, 2003, the magistrate issued her fmdings, which the trial court adopted in full that same day.

Appellant notified the court that she did not have counsel due to his hospitalization. Appellant was NOT

guilty of qontempt but IT COMPLETELY CHANGED THE LIFELONG OUTCOME...The DOPO

filed with STRS on September 15, 2003 must be vacated as it was fraudulently filed following a post

decree false allegation of contempt action and it is unlawful. It was prepared by opposing counsel using

marital dates other than those stipulated in the judgment entry of 8/13/1983 thru 4/9/2002, it violated

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Local Rule 28.01 because it was an order and was approved or signed by Plaintiff or her counsel, it

includes disability which the Supreme Court has ruled is spousal support; and both parties unequivocally

waived spousal support.. The DOPO was signed by ajudge that was not familiar with the case by a

Certification under an Interstate Support rule when the Plaintiff did not have legal representation and

issued seventeen months after the agreement was made-that is at least-four errors.. It is not the mutual

agreement of the parties and not determined by state statute-six errors. The attorneys and the judges

failed to protect the rights of the Plaintiff; and it has slowly destroyed her life. The DOPO was signed by

different judge and filed on September 15, 2003. Appellant's counsel filed a motion for relief from

judgment under Civ. R. 60(B)(1)(5) asserting that neither the decree, nor the DOPO, reflected the

parties' agreement relative to the pension offset with an Affidavit dated April 7, 2003 it was denied as

untimely even though it was filed fourteen days after the DOPO, after waiting seventeen months from

Decree to DOPO. Appellant COULD NOT FILE AN APPEAL, she was not guilty and her attorney was

extremely ill. Additional the court cannot review the trial court for discretion because it did not hear the

case and apply ORC 3105.171, thus NO DISCRETION; he did not meet the litigants and did judge the

case through state statute was all arbitrary. Appellant could not continue litigation' her life was falling

apart: it had taken two and a-half years to get to this point and find out what their scam really was.---

Appellant was literally in shock, traumatized that the failure of the system to protect her, her children

and her property,,, and she did not have counsel she could trust or rely upon. The court did not retain

jurisdiction in the hearing on 4/9/2002 or Decree of Divorce 8/21/2002 nor through O.R.C. 3105.171. It

did not have jurisdiction to modify, change or enforce the order after thirty days IT FILED AN

UNLAWFUL DOPO.

The Appellate Court states on page 3 of their 7ournal Entry/Decision that; "The DOPO was filed on

September 15, 2003 without Appellant's signature, pursuant to Loc. R. 28.01(B) it said 19.01(B) and it

violates every time limit in the rules as well as statutory time limit. The DOPO was not a final

appealable decision, and then she would have just been a vexatious litigant. Appellant did notify the

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court that she objected and that her attorney was in intensive care on 8/7/2003. She asked for advice,

they responded that they were "officers of the court and "could not advise" her. They court have at least

directed her to to the Local Rules.

The DOPO was filed without signatures from Plaintiff or her counsel with a`pursuant to Local Rule

19.01(B) -which is a procedure of filing under Uniform Interstate Family Support Act O.R.C. 3115.39

and has nothing to do with property, or a DOPO. Appellee's' attorney knew full well that Appellant's

counsel was ill and unavailable because a third attorney moved from one office to the other at the same

time. court filed the improper DOPO on September 15, 2003. 3105.65 of Ohio Revised Code but ORC

3105.171 is not applicable in this case as the court did not prepare disclosure of equal and equitable of

marital property division, thus they could not have exercised `broad discretion', `due process' and `equal

and equitable property division' are still justified in the interest of JUSTICE; Section 3105.89 states that

the court retains jurisdiction-modification of orders notwithstanding division I of section 3105.171. A

division or disbursement of property or distributive award made under this section is not subject to

future modification by the court again the court does not have jurisdiction after the Decree, it is the final

appealable order. Thus the court did not have the right to change the Decree and allow the Appellee's

attorney to prepare it instead of Pension Evaluators with miscalculations and the inclusion of disability

income over Appellant's objections and during the illness of her attorney.

Even the Appellate Court had to add words to quotation of the original journal entry in their Decision for

clarification of the intent of the parties thus proving that it was ambiguous and needed an evidentiary

hearing of all marital assets and the discretion of the court as stipulated in the statute 3501.171 which the

60(B) would have provided. The court's denial of the 60(B) as being untimely denied the Appellant due

process and the courts' opportunity to apply discretion to the property settlement. The Appellant was

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directed her to the Local Rules.




counsel was ill and unavailable because a third attomey moved from one office to the other at the same









attorney to prepare it instead of Pension Evaluators with miscalculations and the inclusion of disability







unable to appeal the Judgment Entry of July 21, 2003 Judgment Entry/Decision due to the illness of

counsel and she had not been found in contempt and DOPO was not an appealable order.


directed her to to the Local Rules.




counsel was ill and unavailable because a third attorney moved from one office to the other at the same









attorney to prepare it instead of Pension Evaluators with niiscalculations and the inclusion of disability







unable to appeal the Judgment Entry of July 21, 2003 Judgment Entry/Decision due to the illness of

counsel and she had not been found in contempt and DOPO was not an appealable order.

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PROPOSITIONS OF LAW

The property settlement has been an ongoing source of litigation since the contempt of March 2003

changed the intent of the Decree. The Appellate Court in paragraph 17 states that Appellant did not

appeal the July 21, 2003 order, however it was not a final appealable order; she was not guilty of

contempt and her written and verbal objections were ignored in the post decree action. At the time the

ruling was issued, four months after the hearing, her counsel was hospitalized and she notified the court

however, the division of property was filed as a result of an order issued at that time denying her due

process. The order issued post decree was not issued as a supplement journal entry, was not journalized

and the division of property was not the enforcement of the prior Decree. She attempted to vacate the

Decree within two weeks of the filing of the division of property but that was denied as untimely even

though the court has since determined that a Decree is not appealable until the property is complete.

The Supreme Court has directed courts not to review property division piecemeal, but rather to view

them in their entirety and to consider the totality of circumstances, Briganti v. Briganti (1984), 9 Ohio

St. 3d 220. Failure to reserve jurisdiction deprives the trial court of the ability; that is subject matter

jurisdiction, to modify any award of pension benefits in the decree of divorce or dissolution. Schrader v.

Schrader (1995), 108 Ohio App.3d 25, 28,669 N.E.2d 878. If a document "is clear and unambiguous, its

interpretation is a matter of law, and no issue of fact remains to be determined."

The Supreme Court of Ohio has held that "a settlement agreement is a contract designed to terminate a

claim by preventing or ending litigation." (All Kelley and Ferraro Cases2004-Ohio 7104, at 28).

These were created and manipulated to deceive the court to change the terms of agreement and allow

them to issue the DOPO to their advantage. The court filed the DOPO thirteen months after the Decree

over the objections of the Plaintiff when her counsel was unavailable due to serious illness. The

Plaintiffs objections are recorded in the transcript of the hearing in March 2003 and the court was

- II -

notified by the Plaintiff that her attorney was unavailable by email on 8/7/2003. The DOPO was sent to

the court on 9/3/2003 without Appellant or her counsel's signature but through the wrong Local Ruled

19.01(B) Procedure for filings under UIFSA. (Uniform Interstate Family Support Act, R.C. 3115.39 et

seq.)" The Appellee's attorney was well aware of the hospitalization and unavailability of Appellant's

attorney as they both shared office space with a third attorney that was in the process of moving from

one office to the other during the same period of time, the third attorney is now deceased. The DOPO

was then signed by a third judge that had nothing to do with the case at a time when the presiding judge

was aware of the illness of Appellant's attorney.

Proposition of Law: IT IS UNCONSTITUTIONAL TO ENSLAVE A CITIZEN THROUGHLAND, LABOR, OR GOODS

3105.65(B) Power of court. It is unlawfulfor the court to change, modify, clarify or enforce a postdecree mutual agreement retain jurisdiction through this statute. All property must be divided and aUdocumentsfded prior to the final decree.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

What is not in the records is not in the records, but it does not mean it is not relevant. Discretion is not

always there. Jurisdiction is not there, ineffective or absent attomey's can all add up to lack of due

process. Appellate Paragraph 22 states that Appellant alleges the trial court "did not retain jurisdiction

over future distributions of [her] STRS pension." It is not just an allegation when it is absent from the

Decree and the ORC 3105.171 WAS NOT APPLIED, That is the state statute that gives the court the

power to declare parties agreement; a divorce. Apparently the Appellate court did not READ the Final

Brief with Improved References where the front page tells them about the references and the six errors

have been reduced to two, they also have denied a Motion to reconsider due to Ineffective Counsel for

denying his testimony, however, denied again even with citations. It reads as follows:

"In the case at hand the trial court did not reserve jurisdiction to change or modify the DOPO in theJE/Decree of Divorce as required by R.C. 3105.89(B) and if a court fails to reserve jurisdiction overthe distribution of a vested but unmetered pension, the court is without subject matter jurisdiction tomodify the award of pension benefits and thus has no power to act in this regard Robins, supra, at

No. 05AP-484

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As such the trial court had no jurisdiction to alter the terms of preparation of.the DOPO or to allow the

filing to make it legal DOPO under section 3105.171 or 3105.65 of the Revised Code. Appellee's

counsel used file it with an illegal "Certification" and without the proper signature using states it is

being file pursuant to Local Rule 19.01 (out of state support issues, not property or 28.01 as indicated by

the App.C.), which has nothing to do with case and signed by a judge that was not assigned to the case

rather than the assigned judge that had been notified or the illness of Plaintiffls attorney. It was not

prepared by Pension Evaluators as stipulated in the Journal Entry/Decree of Divorce 8/21/2002 and

beyond the statute of limitations. It includes disability/spousal support which had been waived by both

parties and issued without a final appealable order or supplemental journal entry. It was filed over

Plaintiffs' numerous objections as evidenced in the hearing transcript and well over a year after the

divorce decree.

The court was unable to view them in their entirety or to consider the totality of circumstances, Brigatiti

v. Briganti (1984), 9 Ohio St. 3d 220. Failure to reserve jurisdiction deprives the trial court of the

ability; that is subject matter jurisdiction, to modify any award of pension benefits in the decree of

divorce or dissolution. Schrader v. Schrader (1995), 108 Ohio App.3d 25, 28,669 N.E.2d 878. If a

document "is clear and unambiguous, its interpretation is a matter of law, and no issue of fact remains to

be determined." Denman v. State Farm Ins. Co., 9th Dist. No. 05CA008744, 2006-Ohio-1308, at ¶13.

However, contract terms are ambiguous "if they can be reasonably understood in more than one sense."

Watkins v. Williams, 9th Dist. No. 22162, 2004-Ohio-7171, at ¶24. This agreement is ambiguous but the

court did not defer to the express terms of the contract or interpret it according to its plain, ordinary, and

common meaning. Haley v. Hunter, 9th Dist. No. 23027, 2006-Ohio-2975.

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Under the principle of finality of judgments, a trial court has no authority to reopen an earlier property

division order where no appeal was taken from the prior decree and the time to appeal has run. Grinder

v. Grinder, Stark App.No. 2001 CA00317, 2002-Ohio-1860, citing Bean v. Bean (1983), 14 Ohio

App.3d 358, 361, 471 N.E.2d 785. This division of property was mutually agreed upon by the parties

until the court made changes in their effort to resolve alleged confusion of language. The court did not

hold an evidentiary hearing or compare the DOPO to the total division of marital assets so it has no

discretion to apply. The court did not have the jurisdiction to change the parties' agreement: to allow the

Defense attorney to prepare the DOPO, to include spousal support (disability/income continuation) or

approve the order seventeen months after the court decree. In Seasons Coal Co. v. Cleveland (1984), 10

Ohio St.3d 77, 81, 461 N.E.2d 1273, the Ohio Supreme Court explained: "[A] reviewing court should

not reverse a decision simply because it holds a different opinion concerning the credibility of the

evidence submitted before the trial court. A finding of an error in law is a legitimate ground for reversal,

but a difference of opinion on credibility of witnesses and evidence is not." See, also, State v. DeHass

(1967), 10 Ohio St.2d 230. The Appellate Court is not fact fmders; they do not weigh the evidence nor

judge the credibility. Their role is to determine whether there is relevant, competent and credible

evidence upon which the fact finder could base his or her judgment. Peterson v. Peterson, Muskingum

App.No. CT2003-0049, 2004-Ohio-4714, ¶ 10, citing Cross Truck v. Jeffries (Feb. 10, 1982), Stark

App.No. CA-5758. O. R.C. 3105.89 provides: Notwithstanding division (I) of section 3105.171 of the

Revised Code: the trial court failed to expressly or impliedly reserve jurisdiction to modify the DOPO.

There is no evidence supporting a fmding that the DOPO's modification of the trial court's previous

calculation of the marital portion of plaintiffs retirement benefits was made for the purpose of enforcing

the divorce decree or carrying into effect the manifest intentions of the parties as required by R.C.

3105.89(B). In this case the evidence is that the DOPO does not reflect the marital portion of plaintiffs

retirement benefits, it changes the intentions of the parties and it does not enforcing the divorce decree

or carrying into effect the manifest intentions of the parties as required by R.C. 3105.89(B), therefore the

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DOPO violates R.C. 3105.171(I) and impermissibly modifies the division of property as ordered in the

decree of divorce. See Robins, supra, at ¶12 (stating that if a court fails to reserve jurisdiction over the

distribution of a vested but unmatured pension, then "in such instance, the court is without subject

matter jurisdiction to modify the award of pension benefits and thus has no power to act in this regard").

The division of property was a mutual agreed by the parties. It was filed August 21, 2002. This Court

has held that "a settlement agreement is a contract designed to terminate a claim by preventing or ending

litigation." (All Kelley and Ferraro Cases2004-Ohio 7104, at 28) The Decree was the final appealable

entry and the defense did not appeal it within thirty days thus the court acted unlawfully when it changed

the settlement agreement terms in the DOPO filed it unlawfully on September 15, 2003. The court has

continued to circumvent justice for another seven years. The court did not define the language of the

decree as ambiguous therefore it did not have the jurisdiction to change the meaning as understood by

the Plaintiff. The Plaintiff did object to the courts findings and orders of 7/21/2003 in the courtroom on

3/28/2003 and again by email within ten days stating that her counsel was unavailable, thus the court

denied her due process by continuing action knowing she was without legal assistance when they filed

the DOPO over the objections of the Plaintiff. The court did not have the right to change the intent of

Decree or to allow the defense attorney to single handedly change the parties' The transcript also

indicates that the court had been deliberately prejudiced against the Appellant by counsel in the first

hearing apparently with allegations that she had been uncooperative with him when she was merely

attempting to maintain privacy and get payment before proceeding with the agreed upon DOPO. The

court did not have the right to change the obvious agreement to have a neutral party; Pension Evaluators

prepare the DOPO. The court did not just address a misunderstanding; it changed the Decree by

accepting the DOPO prepared by the defense attorney. The Appellant did not see the DOPO until she

was in the courtroom as indicated in the transcript. Not all the errors of fraud, mistake, and omission

were readily available hereby he committed fraud by using calculations from PE that were not based on

the marital time period to the advantage of his client as the Appellant had in the evaluations both he and

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PE already had for comparison. He also did not check off disability on the DOPO knowing that his

client had been living on disability for over ten years and that the Appellant had not ever take any of her

entitlement of his disability and did not intend to do so in the future. The fact that the court did not hold

an evidentiary hearing on the total marital assets permitted financial fraud by the defense

Whenever any officer of the court commits fraud during a proceeding in the court, he/she is engaged in

"fraud upon the court". In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court

stated "Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud

between the parties or fraudulent documents, false statements or peijury. It is where the court or a

member is corrupted or influenced or influence is attempted or where the judge has not performed his

judicial function --- thus where the impartial functions of the court have been directly corrupted."

Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that species of

fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court

so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases

that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice,

2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated "a decision produced by fraud upon the court is not

in essence a decision at all, and never becomes fmal."

"Fraud upon the court" makes void the orders and judgments of that court. It is law that any attempt to

commit "fraud upon the court" vitiates the entire proceeding. The People of the State of Illinois v. Fred

E. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) ("The maxim that fraud vitiates every transaction into

which it enters applies to judgments as well as to contracts and other transactions."); Allen F. Moore v.

Stanley F. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) ("The maxim that fraud vitiates every transaction

into which it enters..."); In re Village of Willowbrook, 37 I11.App.2d 393 (1962) ("It is axiomatic that

-16-

fraud vitiates everything."); Dunham v. Dunham, 57 I11.App. 475 (1894), affirmed 162 Ill. 589 (1896);

Skelly Oil Co. v. Universal Oil Products Co., 338 I11.App. 79, 86 N.E.2d 875, 883-4 (1949); Thomas

Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935). Under Federal

CONCLUSION

Back to our KEYWORD: HUMANITY. The answer to Federal Judge Shea-Stonum question; "Where

is the humanity?" as she asked of the Appellee's counsel acting on his behalf in the recent adversarial

action is hopefully here in the highest court of the State of Ohio. NO one person should be able to take

advantage of another almost a life time, not through marriage, divorce, or slavery. The actions taken by

the Domestic Relations Court of Summit are inhumane and unlawful. The Appellant has a right to life,

liberty and the pursuit of happiness as guaranteed through our Constitution and only this court can

prevent it from ever happening to another citizen. No responsible law abiding citizen should come out

of a court in this country than whole. For the reasons discussed above, this case involves matters of

public and great general interest and a substantial constitutional question. The appellant requests that

this court accept jurisdiction in this case so that the important issues presented will be reviewed on the

merits.

Respectfully submitted,

" ®19/.Debra urphy-K sli , Appellan ro Se

APPENDIX

SETTLEMENT AGREEMENT/DECREE OF DIVORCE ...........................AUGUST 21,2002

APPELLATE DECISION .............. .......................................................................... JUNE 3, 2009

-I7-

CERTIFICATE OF SERVICE

I certify that a copy of this Memorandum in Support of Jurisdiction will be sent by email to counsel for

appellee, Leslie Graske, Attorney, Graske and Collins, 333 S. Main St., Akron, Oh 44308 COUNSEL

FOR APPELLEE on or about Monday,luly, 20, 2009.

Debra Murphy-KeslingAppellant/Pro Se

Attachment not scanned

The Court further finds that the Defendant was duly served with

summons as required by law, arrd thaL Ltie Defendant has filed and

served upon Plaintiff his Answer and Counterclaim.

The Court further finds that the parties were married

at Wooster, Ohio, on August 13, 1983; and that two children have

been born as issue of said marriage, to wit: JESSICA J.

KESLING, born April 8, 1985; and GERRAD M. KESLING, born

August 18, 1988.

The Court further finds that the parties are incom-

patible and that by reason thereof, the Plaintiff is entitled to

a divorce.

It is therefore ORDERED, ADJUDGED AND DECREED that the

Plaintiff, DEBRA J. KESLING, is hereby granted an absolute

divorce from the Defendant, GERALD M. KESLING, and that the

bonds of matrimony heretofore existing between the parties be

and the same are hereby forever dissolved.

The Court further finds that the parties, on April 9,

2002, entered into the following agreement, in open court,

regarding the allocation of parental rights and

responsibilities, the support of the minor children, a division

of property, and all other matters arising out of the marriage

relationship:

1. The parties shall have shared parenting of their

minor children, Jessica and Gerrad, pursuant to the Shared

Parenting Plan executed by the parties, a copy of which is

attached hereto and made a part hereof.

2. Based upon the fact that the Defendant has waived

any right he may have to receive spousal support from the

Plaintiff, the Plaintiff has waived any right she may have to

receive child support from the Defendant.

If, at any time in the future; the Defendant's time

with either of the children is expanded even to the point of his

being designated the residential parent of one or both of the

children, the Defendant will not seek child support from the

Plaintiff. This agreement is a part of the parties'

understanding that neither will seek either child support or

spousal support from the other both now or at any time in the

future.

3. The Plaintiff shall continue to maintain the minor

children on the hospitalization and health insurance she has

through her employment.,

When either party takes either of the children to the

doctor or other health care provider, that party will pay the

co-pay required by the plan at that time. Any other medical

expenses not covered by the Plaintiff's health care plan will be

paid by the Plaintiff so long as the services are performed by

the regular physician, dentist, counselor or other care provider

that has treated the children or a health care provider

authorized by the Plaintiff.

4. The Plaintiff shall be entitled to claim both

c:kiildren as dependents for income tax purposes.

5. There will be no child support; however, if the

Defendant continues to receive Social Security benefits or if

the Defendant, at any time in the future, receives Social

Security benefits and as a result thereof there are Social

Security benefits due the children as his dependents, said

Social Security benefits shall be paid to and used for the

benefit of the children by the Plaintiff.

6. The Defendant shall convey to the Plaintiff by

quit claim deed all his right, title and interest in and to the

former marital residence at 2706 Graybill Road, Uniontown, Ohio,

subject to the outstanding first mortgage thereon to Fifth Third

Bank in the approximate amount of $148,000.00 and the

outstanding home equity loan at Fifth Third Bank with an

outstanding balance of approximately $30,000.00.

The Defendant shall sign any documents necessary to

convey to the Plaintiff any mineral rights and oil and gas

rights associated with her ownership of said property.

On or before April 9, 2003, the Plaintiff will take

whatever measures are necessary to remove the Defendant from any

liability on each of said mortgages.

7. The parties have divided between them to their

mutual satisfaction all household goods, furniture and personal

property previously used by them in common. Neither party shall

make any claim to any such itern now in the possession of or

under the control of the other.

8. The Plaintiff has control of an insurance payment

received as a result of the death of one of the alpacas in the

amount of $8,000.00. From said $8,000.00, the Defendant shall

receive the sum of $5,500.00 and the Plaintiff shall receive the

balance of $2,500.00.

9. The parties have an annuity through Gleaner Life

Insurance Society which has a value of approximately $17,000.00.

Said annLty shall be used for the college education of the

children. The Plaintiff shall maintain control of said annuity,

but shall inform the Defendant at any time she uses any of the

funds for either of the children's college expenses.

10. Except for the mortgage to Fifth Third Bank and

the home equity loan to Fifth Third Bank referred to in

Paragraph 6 hereof, there are no joint debts. Each party will

pay his or her individual debts and will hold the other party

harmless therefrom. The parties acknowledge that the Plaintiff

has approximately $8,000.00 in credit card debt; that the

Defendant has approximately $900.00 in credit card debt and an

outstanding balance due to Portage Path Mental Health Center of

approximately $3,400.00.

The Plaintiff will hold the Defendant harmless on any

claiin tvr amounts owec:t by the parties to the rlaintiff's parents

including any claim for interest.

11. Both parties waive any right either may have to

receive spousal support from the other and the Plaintiff has

waived any right she may have to receive child support.

In the event the Plaintiff, at any time in the future,

would move the Court for an order of child support from the

Defendant, then and only then could the issue of spousal support

be raised by the Dc-fendant as an offset to the child support

obligation. The parties acknowledge that these waivers of

support are to be mutual and that the waiver of spousal support

is given in consideration for the waiver of child support.

12. The parties own a Winnebago motor home which is

now located at the Plaintiff's residence. The Defendant shall

remove said motor home from the Plaintiff's residence on or

before April 16, 2002. Tkie Defendant shall then sell said

Winnebago motor home and the proceeds of said sale shall be

placed in an account to be used for the college educations of

the two children.

In addition, the Defendant shall sell an Oldsmobile

automobile, an Audi automobile and a farm trailer which he has

in his possession. The proceeds of said sales shall also be

placed in an account to be used for the college educations of

the two children.

13. The Plaintiff is a participant in the State

Teacher Retirement system of Ohio (STRS) A Yv^LiQu of 1'1Ci

account is pre-marital property. The parties will employ

Pension Evaluators to determine the marital portion and to

determine the value of a Social Security offset for the

Defendant's right to receive Social Security benefits. The

marital portion of said account less said Social Security offset

will then be divided equally between the parties. For purposes

of that determination, the duration of the marriage will be from

August 13, 1983 to April 9, 2002. The division of the

Plaintiff's STRS benefits shall be based upon a coverture

fraction. The parties will equally share the cost for Pension

Evaluators to make its determination and to prepare any

documents necessary to carry into effect the division of the

benefits as set forth herein.

If it is determined by Pension Evaluators that life

insurance is necessary to protect the Defendant's interest in

the Plaintiff's STRS benefits, the Plaintiff will provide her

employer-paid insurance, which has a death benefit of

approximately $50,000.00, until her retirement, the Plaintiff's

death or the Defendant's death, whichever occurs first. If any

additional insurance is requested by the Defendant either before

the Plaintiff's retirement or after her retirement, the

Defendant will provide that insurance at his expense and the

Plaintiff will cooperate in allowing the Defendant to obtain

said insurance. if the llefendant receives life insurance

proceeds as a result of the Plaintiff's death, his receipt of

said life insurance proceeds will supplant any right he has to

receive anything from the Plaintiff's STRS benefits. Therefore,

any accumulated funds in the Plaintiff's STRS plan will ble paid

to the Plaintiff's designee.

If at any time the Plaintiff retires and begins

receiving STRS benefits, she shall elect a survivorship option

with the Defendant as the survivor on his portion of the plan if

such an election is permitted by the plan.

14. The Plaintiff shall retain as her sole and

exclusive property, free from any claim of the Defendant, a 2001

Chrysler Town & Country minivan which is titled in her name.

The Plaintiff shall assume the outstanding indebtedness against

said automobile to Akron Teacher's Credit Union and hold the

Defendant harmless therefrom.

15. The Defendant shall retain as his sole and

exclusive property, free from any claim of the Plaintiff, a 1995

Ford F150 pickup truck which is titled in his name. The

Defendant shall assume the outstanding indebtedness against said

motor vehicle to Wayne Savings & Loan and hold the Plaintiff

harmless therefrom.

16. Each party shall pay his or her own individual

attorney fees and costs in this matter.

The Court has reviewed the above agreement and finds

the same to be tair and reasonable. The Court theretore

approves said agreement and makes the same an Order of this

Court.

It is further ORDERED that the Plaintiff shall be

restored to the name DEBRA MURPHY-KESLING.

After application of all deposits made for costs, any

balance duei for court costs shall be divided evenly between the

parties.

IT IS SO ORDERED.

APPROVED:

T ^ IS'^ fW V 40 9 itu+^'la ^^alqul[^^ (a4 ^ti€ ot

\

DAVID H. FERGUSON!f #0032038 \

Attorney fo'r Plai$tiff

Suite 415, 'Quaker Square

120 East Mill Street

Akron, Ohio44308

(330) 762-9933

HOW LTON, #007960

Att f r Defendant

Suit' Si; ;Quaker Square120 E s^^Milll StreettAkron, Ohi 44308

(330) 253-21729

IN THE COURT OF APPEALS^ NINTH JUDICIAL DISTRICT

S C. A. No. 24176

Appellant

V.

GERALD M. KBSLING

Appellee

Dated: June 3, 2009

APPEAL FROM JUDGMENTENTERED IN THECOURT OF COMMON PLEASCOUNTY OF SUMMIT, OHIOCASE No. 2001-05-01866

DECISION AND JOURNAL ENTRY

WHITMORE, Judge.

{¶1} Plaintiff-Appellant, Debra Murphy-Kesling ("Wife"), appeals from the denial of

her motion for relief from judgment in the Summit County Court of Common Pleas, Domestic

Relations Division. This Court affirms.

I

{¶2} Defendant-Appellee, Gerald Kesling ("Husband"), and Wife were married in

August 1983 and had two children together. The parties divorced in August 2002. Throughout

their marriage, Wife was employed as a public school teacher and was contributing to her

pension through the State Teachers' Retirement System ("STRS"). At the time of the divorce,

Husband's income was based on Social Security Disability and Veteran's Administration

Disability only. In their divorce decree (the "decree"), Husband waived his right to spousal

support and Wife waived her right to child support. The parties agreed that Husband would

receive a portion of Wife's STRS pension and required that they "employ Pension Evaluators to

2

determine the marital portion [of Wife's STRS pension] and to deteimine the value of a Social

Security offset for [Husband's] right to receive Social Security benefits. The marital portion of

said account less said Social Security offset will then be divided equally between the parties."

The decree was entered August 21, 2002, and Wife did not appeal its terms.

{¶3} Since that time, however, the parties have had numerous challenges to the

enforcement of the decree. In December 2002, Husband filed a post-decree motion compelling,

inter alia, Wife to authorize Pension Evaluators to determine the marital portion of her STRS

pension, from which the parties could prepare the requisite Division of Property Order

("DOPO") granting Husband a portion of Wife's pension.

{1[4} The magistrate held a hearing on Husband's motion in March 2003, at which both

parties were present and represented by counsel. Between the time the motion was filed and the

hearing was held, both Husband and Wife had Pension Evaluators prepare a report identifying

the marital portion of Wife's STRS pension and the Social Security offset. Wife, however,

obtained an evaluation of the value of her hypothetical Social Security benefit, rather than the

value of Husband's actual Social Security benefit as provided for in the decree. Husband's

report from Pension Evaluator indicated that, after the Social Security offset, his equitable

interest in the marital portion of Wife's pension was 45.098%.

{¶5} On July 21, 2003, the magistrate issued her findings, which the trial court adopted

in full that same day. There, the magistrate determined that the DOPO prepared by Husband's

counsel was "properly prepared pursuant to Revised Code Sections 3105.80 to 3105.90, and

correctly allocated the interests of [Husband]" with respect to Wife's STRS pension. Wife did

not object to the magistrate's decision, nor did she appeal the trial court's judgment adopting the

5

Assigment of Error Number Four

"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOTRECOGNIZING A CASE INVOLVING SERIOUS MENTAL DISORDERSTHAT NEEDED PROFESSIONAL COURT INTERVENTION INSTEAD OFCOERCING A MUTUAL AGREEMENT BETWEEN PARTIES THAT TOOK18 MONTHS TO CREATE AND THEN ALLOWING IT TO BE CHANGEDFOUR MONTHS LATER ALLOWING CONTINUED ENTANGLEMENTAND CONTROL OF THE FAMILY FOR ANOTHER SEVEN YEARSFINANCIALLY AND EMOTIONALLY DESTROYING EVERY PRINCIPLEOF `FAMILY', `MUTUAL AGREEMENT' AND IGNORING THE SUPREMECOURT'S EMPI3ASIS ON ENDING LITIGATION AND IRRECONCILABLEDIFFERENCES." (Sic.)

Assi ent of Error Number Five

"IT IS A VIOLATION OF PUBLIC EMPLOYEE'S CIVIL RIGHTS THAT BYGOING TO WORK FOR THE STATE THEY CAN BE REQUIRED TO PAYINTO A STATE PENSION PLAN THAT THEY PAY PERSONAL EARNINGSINTO, THAT BELONG TO THEM AT THE TIME OF HER MARRIAGE BUTDURING THE MARRIAGE THE SATE CHANGED THE LAWS AND MADEIT MARITAL PROPERTY, AND NOW HAS LAWS THAT DICTATE TO THEPENSION PLAN WHO THEY CAN INVEST IN, WHO GETS PAID WHATAND HOW MUCH AND WHEN AND LAWS THAT DISCRIMINATEAGAINST PUBLIC EMPLOYEES AND THE FUNDS THAT THEYPERSONALLY EARNED AS WELL AS THE ACTUAL FORMS THATDICTATE THE EXPENDITURES WHII.E FEDERAL PENSION PLANS AREEXEMPT FROM PROCEEDINGS 1N STATE DIVORCE ACTION." (Sic.)

Assignment of Error Number Six

"THE TRIAL COURT ERRS AND ABUSES ITS DISCRETION WHEN ITOVERRULES 60B MOTIONS AS UNTIMELY WHEN THE COURT TAKESAN EVEN LONGER TIME TO MAKE AND FILE THEIR ENTRIES." (Sic.)

{¶13} Initially, we note that Wife's brief is very disjointed and difficult to comprehend.

While separately captioning six assignments of error, Wife fails to separately assert or develop

any argument in support of each alleged error. App.R. 16(A)(7); Loc.R 7(B)(7). Instead, her

brief contains one continuous argument in which she asserts various allegations of error - some

of which relate to an assignment, some of which do not - but none of which contain any citation

6

to the record in accordance with App.R. 16(A)(7) and Loc.R. 7(B)(7). We note that this Court

grants pro se litigants:

"[R]easonable leeway such that their motions and pleadings should be liberallyconstrued so as to decide the issues on the merits, as opposed to technicalities.However, a pro se litigant is presumed to have knowledge of the law and correctlegal procedures so that he remains subject to the same rules and procedures towhich represented litigants are bound. He is not given greater rights thanrepresented parties, and must bear the consequences of his mistakes. This Court,therefore, must hold [pro se appellants] to the same standard as any representedparty." (Internal citations omitted.) Sherlock v. Myers, 9th Dist. No. 22071, 2004-Ohio-5178, at 13.

Wife filed her brief pro se, but had counsel appear on her behalf at oral argument. This Court's

review, however, is confined to only the arguments and authorities set forth Wife's brief. See

App.R. 16(A); App.R. 21(H).

{1[14} Wife's second, fourth, fifth, and sixth assignments of erYor appear to generally

challenge the provisions of the DOPO that the trial court entered in 2003 and allege that the trial

court erroneously entered the DOPO and then erroneously denied her Civ.R. 60(B) motion

challenging its terms.

{1115} This Court reviews the grant or denial of a Civ.R. 60(B) motion for relief from

judgment under an abuse of discretion standard. Turowski v. Apple Pacations, Inc., 9th Dist. No.

21074, 2002-Ohio-6988, at ¶6. An abuse of discretion is more than a mere error of law or

judgment, but "implies that the court's attitude is unreasonable, arbitrary or unconscionable."

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. Appellate courts may not substitute

their judgment for that of the trial court when an abuse of discretion standard is applied. Pons v.

Ohio St. Med. Bd. (1993), 66 Ohio St.3d 619, 621. In order to prevail on a Civ.R. 60(B) motion:

"[T]he movant must demonstrate that: (1) the party has a meritorious defense orclaim to presentif relief is granted; (2) the party is entitled to relief under one ofthe grounds stated in Civ.R. 60(B)(1) through (5); and (3). the motion is madewithin a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2)

7

or (3), not more than one year after the judgment, order or proceeding was enteredor taken." GTE Automatic Elec. v. ARC Industries, Inc. (1976), 47 Ohio St.2d146, paragraph two of the syllabus.

If any of the above requirements are not met, the Civ.R. 60(B) motion should be overniled by the

trial court. Rose Chevrolet, Inc. v. Adanzs (1988), 36 Ohio St.3d 17, 20. Civ.R. 60(B) allows for

the trial court to relieve parties from-a final judgment for the following reasons:

"(1) mistake, inadvertence, surprise or excusable neglect; (2) newly discoveredevidence which by due diligence could not have been discovered in time to movefor a new trial under Rule 59(B); (3) fraud (whether heretofore denominatedintrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;(4) the judgment has been satisfied, released or discharged, or a prior judgmentupon which it is based has been reversed or otherwise vacated, or it is no longerequitable that the judgment should have prospective application; or (5) any otherreason justifying relief from the judgment."

However, the Supreme Court of Ohio has held that "that Civ.R. 60(B) may not be used as a

substitute for appeal." Doe v. Trumbull Cty. Children Servs. Bd. (1986), 28 Ohio St.3d 128, 131.

Furthermore,.this Court has held that "[e]n-ors that could have been corrected by a timely appeal

cannot be the predicate for a motion for relief from judgment" In re &J., 9th Dist No. 23199,

2006-Ohio-6381, at ¶24, citing Ward v. Hengle (1999), 134 Ohio App.3d 347, 350.

{116} In terms of her challenges to the terms of the DOPO, Wife argues that the term

"Social Security" as used in the parties' divorce decree is ambiguous and has multiple meanings,

because at the time of the parties' divorce, Husband was receiving Social Security disability, but

not Social Security retirement. She asserts that the trial court has erred in interpreting and

applying this term of the parties' DOPO. Wife fiuther asserts that the trial court erred when it

permitted Husband's version of the DOPO to serve as the basis for the calculation of the

percentage of Wife's retirement that Husband is entitled to receive. Along that same line, Wife

asserts that the valuations of the spousal Social Security benefit should be based only on earnings

received during the marital period, and should not be based on eamings received from the point

8

at which they each began paying into Social Security, before they were married. Finally, she

alleges that the DOPO impermissibly changed the parties' decree, thus, the trial court's

determination to adopt the DOPO proffered by Husband's counsel was an abuse of discretion.

{4R17} The record reveals that the trial court's July 21, 2003 order addressed the terms of

the parties' DOPO; finding that it was "properly prepared" and "correctly allocated the interests

of [Husband]." Wife did not appeal this order, but did later file a Civ.R. 60(B) motion

challenging the terms of the DOPO and the calculations upon which the Husband's interest in

her STRS pension were based. Her motion was subsequently denied by the trial court. Wife

attempts to now assert those same arguments on appeal to this Court, nearly six years later,

though they have been previously decided by the trial court on two different occasions, neither of

which she appealed at the time.

{118} "The doctrine of res judicata bars all subsequent actions based upon any claim

arising out of a transaction or occurrence that was previously decided as a final and valid

judgment in a prior action." Smith v. Smith, 9th Dist. No. 23278, 2007-Ohio-512 at ¶6, citing

Harris v. Lorain, 9th Dist. No. 02CA008099, 2003-Ohio-530, at ¶15. Because Wife has failed to

appeal any of the trial court's judgments on this issue, these arguments are now barred by res

judicata. Smith at ¶16. Moreover, many of Wife's arguments were not included in her January

2008 motion for reconsideration. Thus, sbe has forfeited those arguments for review on appeal.

Ilg v. Ilg, 9th Dist. No. 23987, 2008-Ohio-6792, at ¶6. Accordingly, Wife's second, fourth, fifth,

and sixth assignments of error are overruled.

Assignment of Error Number One

"THE TRIAL COURT ERRED AND ABUSED rTS DISCRETION BYDENYING 60(B) MOTIONS FOR RELIEF FROM JUDGMENT FILEDJANUARY 16, 2008 AND SEPTEMBER 29, 2002 AS UNTIMELY ANDFAILING TO VACATE THE DOPO FILED ON SEPTEMBER 15, 2003 AS IT

9

IS NOT BY THE MUTUAL AGREEMENT OF APRIL 9, 2002 ANDJIJDGMENT ENTRY/DIVORCE DECREE OF AUGUST 21, 1002 ANDRECENT CHANGES OF CIRCUMSTANCES MAKE IT EVEN MOREUNJUST, UNREASONABLE, AND UNCONSCIONABLE." (Sic.)

Assi nent of Error Number Tbree

"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN ITOVERRULED A MOTION 60(B)(4) FOR WHAT OCCURRED IN 2003 WHENA 60(B)(4) IS CONTINGENT ON RECENT CHANGES INCIRCUMSTANCES." (Sic.)

{1[19} In her first and:third assignments of error, Wife generally alleges that the terms of

the DOPO do not apply to her STRS disability benefits, but only her STRS retirement benefits.

She asserts that, though Husband is entitled to a portion of her STRS retirement, he is not

entitled to a portion of the temporary disability payments she has been receiving from STRS

since Apri12007. Wife argues that it is unreasonable to assume that she would have waived her

right to spousal support or any portions of Husband's Veteran's Disability and.Social Security

Disability, yet simultaneously permitted him to assert a right to her disability benefits. She also

asserts that, if Husband is entitled to a percentage of her disability, she should be entitled to a

portion of his disability since the date of the parties' divorce.

{120} Based on the claims set forth in her January 2008 motion for reconsideration, the

trial court held a hearing to address the DOPO's terms as applied to Wife's STRS benefits. The

trial court looked to the terms of both the decree and the DOPO and concluded that neither one

excluded STRS disability benefits. Our review of the record convinces us of the same. The

DOPO reads, in relevant part, as follows:

"If [Wife] is eligible to receive more than one benefit payment or more than onelump sum payment, please check the benefit or lump sum payment from whichpayment to [Husband] shall be made. If no benefit or lump sum payment isdesignated, [Husband] shall receive payment from the first benefit payment orlump sum payment for which [Wife] is eligible to apply and to receive."

10

None of the options listed beneath this paragraph, including disability benefits, were designated.

Thus, Wife did not exclude her disability benefits from the ternvs of the DOPO. Additionally,

she unequivocally waived any right to spousal support or any access to Husband's Veteran's

Administration or Social Security disability pays under the terms of the parties' decree. Though

Wife may not have anticipated having to access her STRS disability benefits before accessing

her age or service based retirement benefits, it was apparent on the face of the DOPO that

Husband had an interest in the "first benefit *** for which [Wife] is eligible *** to receive" from

STRS.

{¶22} Given that the DOPO as entered in September 2003 with terms expressly

delineating Husband's unconditioned interest in Wife's STRS benefits, the trial court did not

abuse its discretion in denying Wife's motion for reconsideration because it was not "made

within a reasonable time." GTEAutomatlc Elec., 47 Ohio St.2d at paragraph two of the syllabus.

{4122} Finally, Wife alleges the trial court "did not retain jurisdiction over future

distributions of [her] STRS pension." Wife does not, however, direct the Court to any evidence

in support of this assertion. See App.R. 16(A)(7). Moreover, our review of the record reveals

that counsel who assisted her at the hearing on this matter agreed that the trial court did properly

retain jurisdiction over the decree and the DOPO. Accordingly, Wife's argument is not weIl

taken.

{1[23} Based on the foregoing, we conclude that the trial court did not abuse its

discretion in denying Wife's motion for reconsideration. Wife's first and third assignments of

error are not well taken. Accordingly, those assignments of error are overraled.

III

11

{1[24} Wife's six assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas, Domestic Relations Division, is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Obio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the joumal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run.. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

BETH WHITMOREFOR THE COURT

CARR, J.MOORE, P. J.CONCUR

APPEARANCES:

DEBRA J. MURPHY-KESLING, pro se, Appellant.

LESLIE S. GRASKE, Attorney at Law, for Appellee.

me d - supreme court of ohio and the ohio judicial system debra murphy-kesling court of appeals...

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