IN THE SUPREME COURT OF OHIO

Eddie B. Richardson,

Plaintiff-Appellant,On Appeal from the Franklin CountyCourt of Appeals, Tenth AppellateDistrict

V.

Rebecca Richardson,

Defendant-Appellee.

Court of AppealsCase No.: 07AP-0287

08p 01-97

MEMORANDUM IN SUPPORT OF JURISDICTION OFPLAINTIFF-APPELLANT, EDDIE B. RICHARDSON

Thomas M. Tyack (0006476) COUNSEL OF RECORDTYACK BLACKMORE & LISTONCO., L.P.A.536 South High StreetColumbus, OH 43215(614) 221-1341 Tel.(614) 228-0253 Faxttyack@tblattomeys.comCOUNSEL FOR PLAINTIFF-APPELLANT, EDDIE RICHARDSONCharles K. Milless (0007025) COUNSEL OF RECORD400 South Fifth StreetSuite 303Columbus, OH 43215(614) 464-0011pmilless@nyap.orgCOUNSEL FOR DEFENDANT-APPELLEE, REBECCA RICHARDSON

CLERK OF COURTSUPREME COURT ®E OHItI

TABLE OF CONTENTS

Page

EXPLANATION OF WIIY THIS CASE IS A CASEOF PUBLIC OR GREAT GENERAL INTERESTAND INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION ..................................................................... 1

STATEMENT OF THE CASE AND FACTS .................................................. 2

ARGUMENT IN SUPPORT OF PROPOSITION OFLAW

Proposition of Law No. I: Where in a domestic relations casea party thereto secrets assets by placing them in the nameof another person and then it is later revealed the existence ofthose assets, the aggrieved party is entitled to relief pursuantto Civ.R. 60(B) and the time from which the individual mayseek relief should commence at the time of the location of thedocumentation demonstrating the inappropriate conduct ratherthan at the time of the divorce ................................................................ 4

CONCLUSION ............................................. ......................................... 7

PROOF OF SERVICE ....................................................................................... 8

APPENDIX Appx. Page

Opinion of Franklin County Court of Appeals(December 18, 2007) ............................................................................... 1

Judgement Entry of the Franklin County Courtof Appeals (December 18, 2007) ............................................................. 9

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GRF.ATGENERAL INTEREST AND INVOLVES A SUBSTANTIAL

CONSTITUTIONAL OUESTION

This case raises a substantial question as to the relief to be made available to a party to a

case who has been victimized by the inappropriate behaviors of the opposing party during

pendency of the initial action when the victim, only after a passage of time, was able to document

the fact that assets had been secreted by being placed in another's name at the time of the onset

or during the ongoing litigation involving a divorce and involving the division of marital assets.

In essence, the ruling of the Court of Appeals in this case leaves such a victim without

remedy simply because of the passage of time until the records which can be used demonstrate

that assets had been secreted and misrepresentations made as to the existence of the assets. After

the Divorce Decree having been filed the only effective remedy would appear to be pursuant to

the rules of Civ.R. 60(B). This case is of great public interest because, in essence, this Court

needs to set forth a policy whereby when the appropriate time pursuant to consideration under

Civ.R. 60(B) under circumstances such as these starts when the party later is able to document or

produce evidence to demonstrate that, in fact, such misconduct has occurred.

1

STATEMENT OF THE CASE AND FACTS

The parties were divorced in September of 2001. As a part of those proceedings with

regard to assets, the parties entered into a Stipulation as to assets based on the representation

primarily of the Defendant-Appellee who was employed by Huntington National Bank.

Stipulation No. 6 provided that each party had a modest checking account in their individual

names. Consequent thereto Defendant-Appellee obtained records from the Huntington National

Bank which reflected that accounts in Mrs. Richardson's name and in his name had been

manipulated by Mrs. Richardson and on February 28, 2000, all of the funds totaling $34,000 had

been transferred into an account in the name of Mrs. Richardson's brother, Baldeo Lalla, and not

revealed by Mrs. Richardson. Plaintiff then filed a Motion for Relief from Judgement Pursuant

to Civil Rule 60(B) shortly after having received the information in September of 2004.

The Rule 60(B) Motion was referred to a Magistrate for hearing. The Magistrate entered

a ruling denying relief and inexplicably finding that, in fact, the monies in question had not been

transferred into this account but had been used to pay off a debt of Mrs. Richardson's which

ostensibly was marital.

Objections were timely filed to the Judge and the Judge overruled the objections. The

matter was then appealed to the Franklin County Court of Appeal, Tenth Appellate District,

which upheld the Judgment of the Trial Court refusing to grant relief to the Appellant.

Factually what occurred was that immediately prior to the parties divorce case being filed,

the Appellee transferred $34,000.00 in marital monies into a Huntington National Bank account

essentially in the name of Baldeo Lalla, her brother, in account number 0489599560. The

account was maintained solely in the name of Baldeo Lalla until after the divorce case was over

2

at which time the money was placed in joint names of Mr. Lalla and the Appellee, who was his

sister.

Throughout the earlier period of time the Appellee was, in fact, employed by Huntington

National Bank. At the hearing it was demonstrated that, in fact, although the account was

ostensibly maintain in Mr. Lalla's name, the Appellee at one point in time while the case was

pending withdrew $500.00 from the account on her own signature. These records were located

only after the divorce case was over.

The hearing on the Civ.R. 60(B) Motion was initially referred to a Magistrate. The

Magistrate suggested that the delay prevented granting relief but also factually was incorrect and

in total disregard of the bank records which demonstrate and traced the funds into this account

that the money had been used by Appellee to pay a loan.

Objections to the trial court were filed and the records again demonstrated that, in fact,

the then Mrs. Richardson had placed the money in her brother's name and the documents before

the court included not only the withdrawals from the accounts which had been initially in the

name of the Appellant and the Appellee or the Appellee, also, the transaction documentation

showing the transfers-into the newly established account.

3

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

Proposition of Law No. I: Where in a domestic relations case a party thereto secrets

assets by placing them in the name of another person and then it is later revealed the

existence of those assets, the aggrieved party is entitled to relief pursuant to Civ.R. 60(B)

and the time from which the individual may seek relief should commence at the time of the

location of the documentation demonstrating the inappropriate conduct rather than at the

time of the divorce.

The law is well settled that when there is a failure to disclose pension assets available or

to disclose assets any result is incomplete, ostensibly voidable and necessary to Rule 60(B) relief.

Compare In Re: Murnhv, 110 Ohio App.3d 134 (1983), Clymer v. Clvmer, Franklin App. No.

91AP-438 (1991), and Milhon v. Milhon, Franklin App. No. 90AP-1111, (1991).

In the instant case, in the Rule 60(B) hearing the Plaintiff-Appellant demonstrated by

documents from Huntington National Bank that $34,000 was deposited into a Huntington

National Bank account ostensibly in the name of Baldeo Lalla, the Defendant-Appellee's brother,

in account number 048959997560.

The bank records introduced into evidence at the time of the hearing traced those monies,

all of which were deposited the same day into the account by Mrs. Richardson on February 28,

2000, from accounts that had been opened in her name alone or in one case in the name of

Plaintiff-Appellant, Eddie Richardson.

The Plaintiff-Appellant also put in copies of the deposit slips showing the transfers into

the account on February 28, 2000 (Plaintiff s Exhibit 1 at the hearing.) The Magistrate ruled that

the monies in question had been used to pay off a loan, which is absolutely factually incorrect

4

and directly contradicted by the bank records finally obtained by the Plaintiff-Appellant which

were placed into evidence (Plaintiffls Exhibits 1-4). The records also demonstrated, for example,

that after the passage of some time, the account was re-listed in the name of Rebecca and her

brother, in fact, as early as the summer of 2001. She had taken a withdrawal from the account

under her own signature and then transferred it into her checking account.

On the objections raised to this opinion, the trial court adopted the finding that, in fact,

the monies were non-marital (although the documentation directly establishes to the contrary)

and that the monies had been used to pay off a loan, again, although the bank documents show

this simply was untrue.

The trial court further attempted to justify denying relief upon the grounds that the request

was not filed in a timely fashion. Until the bank records was obtained from Mrs. Lalla's

employer, Huntington National Bank, there was not documentation to support the Plaintiff-

Appellant's concern and the record is clear that, in fact, the Motion for Rule 60(B) Relief was

filed within a very short period of time of the records having been obtained from the Huntington

National Bank.

Thus it is submitted that as presented to the trial court that clearly the issue does provide a

necessity for relief as required by GTE Automatic v. ARC Industries (1976), 47 Ohio St.2d 146,

as the money having been transferred by Mrs. Richardson into her brother's name from accounts

that were either originally in her name or she and her husband's name which were marital assets

which need to be taken into account as a part of the divorce.

The Court of Appeals in Clymer, supra and Milhon recognized that on certain occasions

in order to do justice, etc., it must be recognized that the one year limitation of certain portions of

5

Rule 60(B) is inapplicable.

It is submitted that, in fact, by Defendant-Appellee misrepresenting in secreting the

monies that were hidden and then causing and pushing to have the assets "stipulated" this

constitutes a fraud upon the Court as the Defendant-Appellee, in essence, misrepresenting the

status of her assets by failing to reveal the assets that she had secreted in her brother's name. It is

clear that, to the extent such an action is a fraud upon the Court, the action is not subject to the

one year lirnitation of Rule 60(B). See Coulson v. Coulson, 5 Ohio St.3d 12 (1983). Rather the

Motion should be considered valid pursuant to Rule 60(B)(5) as was done in the instant case,

compare Flartford v. Hartford, 53 Ohio App.3d 79 (1977).

6

CONCLUSION

Based on the foregoing it is respectfully submitted that this matter be admitted to this

court for briefing and argument on the merits.

Respectfully submitted,

Thdfnas M. TyackCounsel of Record

COUNSEL FOR PLAINTIFF-APPELLANT,EDDIE B. RICHARDSON

7

CERTIFICATE OF SERVICE

I certify that a copy of this Memorandum was sent by ordinary U.S. Mail to Counsel for

Defendant-Appellee, Charles K. Milless, 400 South Fifth Street, Suite 303, Columbus, OH

43215, on January 25, 2008.

Thomas M. TyacCounsel of Record

COUNSEL FOR PLAINTIFF-APPELLANT,EDDIE B. RICHARDSON

8

"Appendix Page 1"

C)t)iCi ;

IN THE COURT OF APPEALS OF OHIO i,;} j: 38

TENTH APPELLATE DISTRICT CLERK COURTS

Eddie B. Richardson,

Plaintiff-Appellant,

V.

Rebecca Richardson (n.k.a. Lalla-Rank),

Defendant-Appellee.

O P I N I O N

No. 07AP-287(C.P.C. No. OODR-03-1131)

(REGULAR CALENDAR)

Rendered on December 13, 2007

Tyack, Blackmore & Liston Co., LPA, and Thomas M. Tyack,for appellant.

Chardes K. Milless, for appellee.

APPEAL from the Franklin County Court of Common Pleas,Division of Domestic Relations.

BRYANT, J.

{9[1) Plaintiff-appellant, Eddie B. Richardson, appeals from a judgment of the

Franklin County Court of Common Pleas, Division of Domestic Relations, overruling his

motion for relief from judgment pursuant to Civ.R. 60(B). Plaintiff assigns a single error:

THE TRIAL COURT ERRED IN NOT GRANTING 60(B) RE-LIEF WHEN THE EVIDENCE CLEARLY DEMONSTRATEDTHAT, IN FACT, THE DEFENDANT-APPELLEE PLACED$34,000 OF MARITAL ASSETS IN THE NAME OF HERBROTHER WHILE CONTINUING TO MAINTAIN ACCESS RECEjVED

.. . _... . . : L59

THON3Ac' 3':< -rVACj.K

"Appendix Page 5"

No. 07AP-287 5

certificates of deposit, all as security for a loan. The account and certificates of deposit

were used to pay the loan and enable defendant to secure a larger loan at a lower

interest rate. While the trial court was not required to believe defendant's testimony, it did

so, and defendant's testimony provides a basis for concluding plaintiff failed to

demonstrate a meritorious defense.

{19} Of equally serious consequences is plaintifPs failure to demonstrate he is

entitled to relief under one of the provisions of Civ.R. 60(B)(1) through (5). Plaintiff filed

his complaint on March 13, 2000 and was granted a divorce on September 28, 2001.

Plaintiff thus had nearly one and one-half years in which to conduct discovery. During the

time plaintiffs divorce action was pending, plaintiff had the opportunity to discover "the

complete picture of [defendant's] finances." (Magistrate's Decision, 6.)

{y[101 The evidence taken at the hearing on plaintiffs Civ.R. 60(B) motion

confirms plaintiff was aware of the items he now claims were not disclosed. As the trial

court noted, plaintiff admitted his attorney was informed of the savings account and three

certificates of deposit while the divorce was pending. Indeed, one of the exhibits at the

hearing on plaintiffs motion is defendant's response to plaintifPs request for documents

during the divorce proceedings. In response, defendant produced statements from the

account on which plaintiff premises his Civ.R. 60(B) motion. Were anything additional

needed to demonstrate plaintiff was aware of the account and certificates of deposit

subject of his motion, plaintiffs own written testimony submitted to the trial court during

the divorce proceedings admitted plaintiff knew about the savings account and three

certificates of deposit.

"Appendix Page 6"

No. 07AP-287 6

1111} Further information concerning the ultimate disposition of the funds from the

savings account and the three certificates of deposit were easily discoverable at the time

of the divorce. (Magistrate's Decision, 5.) Instead of exploring the matters through

discovery, plaintiff entered into a stipulation with defendant conceming the extent of their

respective assets and liabilities. By stipulating to the extent of the parties' liabilities and

assets, plaintiff in effect waived the opportunity to conduct further discovery and to

possibly discover other funds. Richardson, supra, at ¶42.

{9[12} As a result, plaintiff cannot meet the requisite showing under Civ.R.

60(B)(1) of mistake, inadvertence, surprise or excusable neglect, or the Civ.R. 60(B)(2)

requirement of newly discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Civ.R. 59(B). Plaintiff could have

discovered, and would not have been surprised by, the evidence he now seeks to litigate

had he pursued the discovery opportunities existing at the time he entered into the

stipulation with defendant. See Layne-Bumett v. Burnett, Montgomery App. No. 20660,

2005-Ohio-2510 (concluding that because husband could have insisted on further

information but did not, he could not complain he was misled).

11131 Similarly, although Civ.R. 60(B)(3) allows for relief from judgment for fraud,

misrepresentation or other misconduct of an adverse party, plaintiff cannot claim the

benefit of that section, as defendant disclosed the statements and certificates of deposit

prior to the divorce. Civ.R. 60(B)(4), addressing satisfied, released or discharged

judgments, does not apply; nor does its language that allows relief if "it is no longer

equitable that the judgment should have prospective application." See Cuyahoga Supporf

Enforcement Agency v. Gufhrie ( 1999), 84 Ohio St.3d 437, 443 (stating "Civ.R. 60[B][4]

"Appendix Page 7"

No. 07AP-287 7

was not meant to offer a party a means to negate a prior finding that the party could have

reasonably prevented").

{q[14} Plaintiff thus seeks to rely on Civ.R. 60(B)(5); it permits the trial court to

vacate the judgment for "any other reason justifying relief from judgment." Plaintiff,

however, cannot invoke Civ.R. 60(B)(5) if one of the more specific provisions of Civ.R.

60(B) encompasses his claim. Caruso-Ciresi v. Lohman (1983), 5 Ohio St.3d 64,

paragraph one of the syllabus. While plaintiff contends defendant's misrepresentation

regarding the extent of her marital asserts justifies relief, such a claim falls under Civ.R.

60(B)(3) and fails because, as the trial court determined, defendant disclosed the

statements and certificates of deposit prior to the divorce. Tabor v. Tabor, Mahoning App.

No. 02-CA-73, 2003-Ohio-1432 (finding no Civ.R. 60[B][3] fraud where former wife had

opportunity at the time of the divorce to determine whether agreement accurately

reflected parties' agreement).

{115} Even if we were to conclude that plaintiffs contentions warrant relief under

Civ.R. 60(B)(3), his motion is untimely. A motion underCiv.R. 60(B)(3) must be made

within a reasonable time, but not more than one year after the judgment, order or

proceeding was entered or taken. Plaintiff was granted a divorce on September 28, 2001;

he filed his motion on September 17, 2004. Similarly, were we to conclude plaintiff has

grounds under Civ.R. 60(B)(5), we nonetheless would find no abuse of discretion in the

common pleas court's determining the motion was not filed within a reasonable time. As

the magistrate pointed out, plaintiff raised the argument about secreted funds within a

short time after the appeal was concluded, primarily through a September 20, 2002 letter

from plaintifPs counsel referencing concerns about undisclosed assets. Although plaintiff

"Appendix Page 8"

No. 07AP-287 8

thus was aware of the allegedly undisclosed assets, he not only failed to file a motion for

two years after the letter, but failed to explain the reason for the delay. The trial court

properly concluded that the motion was not timely filed.

{9[16} Because plaintiff failed to timely set forth a basis for relief from judgment

under the provisions of Civ.R. 60(B), we overrule plaintiffs single assignment of error and

affirm the judgment of the trial court.

Judgment affirmed.

SADLER, P.J., and PETREE, J., concur.

"Appendix Page 9"

IN THE COURT OF APPEALS OF OHIO. Ct^IA2T i^( t:ii';%±yui

! Fl^^^,.;i.'.'^i ^.,.. ':^i^^•J

TENTH APPELLATE DISTRICT 2ap7 DEC 18 Pij 4; 0 9

iLLRK OF COURTSEddie B. Richardson,

Plaintiff-Appellant,

V.

Rebecca Richardson (n.k.a. Lalla-Rank),

Defendant-Appellee.

No. 07AP-287(C.P.C. No. 00DR-03-1131)

(REGULAR CALENDAR)

.IUDGMENT ENTRY

For the reasons stated in the opinion of this court rendered herein on

December 13, 2007, and having overruled plaintiffs single assignment of error, it is the

judgment and order of this court that the judgment of the Franklin County Court of

Common Pleas, Division of Domestic Relations, is affirmed. Costs to plaintiff.

BRYANT, J., SADLER, P.J., & PETREE, J.