Opinion
L-21-1040
11-05-2021
Laurie A. Hudson Appellee v. Estel W. Hudson and Jazzmin Hudson Miller and Estel's Auto Sales & Parts, d/b/a Estel's Towing Appellees Jazzmin Hudson Miller-Appellant
Abbey M. Flynn, for Appellee, Laurie Ann Hudson. Lorin J. Zaner and Jill M. Varnes-Richardson, for appellees, Estel W. Hudson and Estel's Auto Sales & Parts, d/b/a Estel's Towing. Zachary J. Murry, for appellant.
Trial Court No. DR 2015-0734
Abbey M. Flynn, for Appellee, Laurie Ann Hudson.
Lorin J. Zaner and Jill M. Varnes-Richardson, for appellees, Estel W. Hudson and Estel's Auto Sales & Parts, d/b/a Estel's Towing.
Zachary J. Murry, for appellant.
DECISION AND JUDGMENT
MAYLE, J.
{¶ 1} Appellant, Jazzmin Hudson Miller, appeals the February 3, 2021 judgment of the Lucas County Court of Common Pleas, Domestic Division, dismissing her 1 intervenor complaint, motion to intervene, and Civ.R. 60(B) motion to set aside judgment of divorce. Appellees, Laurie Hudson and Estel Hudson, have filed appellate briefs. For the following reasons, we affirm the trial court judgment.
I. Background
{¶ 2} On April 28, 2015, Estel Hudson entered a plea of no contest to gross sexual imposition; he was sentenced to a term of 18 months in prison. On August 13, 2015, while Estel was incarcerated for this crime, his wife of 25 years, Laurie Ann Hudson, filed a complaint for divorce. The divorce was granted in a final judgment entry of divorce, journalized on November 13, 2015.
{¶ 3} The judgment divided the Hudsons' marital property. It awarded Estel a 2005 Ford truck, 2006 Ford truck, and 2000 Chevy truck. It awarded Laurie a 2008 Ford SUV, 1999 Harley Sport motorcycle, real property located at 229, 312, and 344 South Schwamberger Road, and remaining personal property, clothing, jewelry, furniture, furnishings, appliances, vehicles, bank accounts, pensions plans, and other retirement plans. The court in its judgment specifically found that "[a]n unequal distribution of marital assets is appropriate and reasonable" given that "Plaintiff had to incur multiple fees and expenses, including but not limited to, the payment of Defendant's attorney fees to defend the criminal action as well as a subsequent civil custody trial."
{¶ 4} Almost two years later, on October 6, 2017, Jazzmin Hudson Miller, the victim of Estel's crime, filed a civil complaint against him, in Lucas County case No. CI-201704367, 2 for assault and battery and intentional and negligent infliction of emotional distress. Estel never answered, and Miller was granted a default judgment. Following a damages hearing on March 26, 2018, Miller was awarded compensatory damages of $250,000, punitive damages of $500,000, and attorney fees of $20,000. Certificates of judgment were filed with the court on April 12, 2018.
{¶ 5} On November 5, 2020-almost five years after the final judgment entry of divorce and more than two years after Miller was awarded damages against Estel-Miller filed an intervenor complaint in the Hudsons' divorce case. She alleged in her complaint that on January 16, 2018, in anticipation of a judgment against him, Estel transferred to Laurie their previously jointly-titled real property. Additionally, she alleged that during the divorce proceedings, the Hudsons failed to disclose as a marital asset their business, Estel's Towing, and they allowed the name of the business to expire by operation of law on April 25, 2018. Miller claimed that these actions were taken with the actual or constructive intent to defraud her, and she claimed that the final judgment of divorce was secured through fraud on the court. She demanded compensatory and punitive damages.
{¶ 6} Miller in her intervenor complaint also sought a judgment declaring that all assets transferred by operation of the court's judgment of divorce are rightly her property. She asked the court to set aside the award to Laurie of the Schwamberger Road properties and allow her to foreclose on all properties conveyed in furtherance of the Hudsons' 3 allegedly fraudulent scheme. She requested that a receiver be appointed to marshal, inventory, and liquidate these and other assets.
{¶ 7} Miller contended that the domestic relations court had jurisdiction over her intervenor complaint under R.C. 3105.011, and she had standing to intervene in the divorce action "as a matter of right pursuant to Civ.R. 24(A) by virtue of her interest in the property that was transferred as part of Laurie and Estel Hudson's sham 2015 Divorce."
{¶ 8} In addition to her intervenor complaint, Miller also filed a motion to set aside the judgment of divorce under Civ.R. 60(B). She claimed that the Hudsons continue to reside together and comport themselves as a married couple, and their "jailhouse divorce" was secured and marital assets transferred to Laurie in order to avoid civil forfeiture and to thwart Miller's ability to recover for the abuse inflicted on her. Recognizing that her motion was not filed within one year of the November 13, 2015 judgment-as required for motions filed under Civ.R. 60(B)(1) through (3)-Miller insisted that the Hudsons had committed a fraud on the court, thereby providing an appropriate basis to set aside the judgment more than one year after it was entered under Civ.R. 60(B)(5).
{¶ 9} Miller also argued that her motion was filed "within the natural statute of limitations for fraud," and "within one (1) year of her dismissal of her prior action in the general division of the common pleas court." Specifically, Miller had filed a complaint 4 in the general division on March 18, 2019, alleging that the conveyances of property were fraudulent and seeking to foreclose, but dismissed it without prejudice on February 3, 2020, purportedly because "it was determined that subject matter jurisdiction of the majority of [her] claims was vested in the Domestic Relations Division as the fraudulent conveyance of the property was consummated pursuant to the Final Judgment of Divorce." Miller contended that because she sought to intervene in the domestic relations case within one year of dismissing her case in the general division, her motion should be deemed timely under Civ.R. 60(B). Finally, Miller claimed that she has a meritorious claim because the Hudsons took fraudulent action to try to prevent her from recovering on her valid, certified judgment.
{¶ 10} In separate briefs, Laurie and Estel opposed Miller's motion to set aside the final judgment of divorce. Laurie argued that a fraud upon the court requires conduct committed by an officer of the court, and Miller's motion did not allege such conduct, therefore, Civ.R. 60(B)(5) is inapplicable. She insisted that Miller's motion alleged fraud under Civ.R. 60(B)(3), which requires the motion to be filed within one year after the judgment. Here, she claimed, Miller's motion was untimely because it was filed almost five years after the final judgment of divorce. Laurie argued that even assuming that Civ.R. 60(B)(5) applied, it still requires that the motion be filed within a reasonable time. She claimed that it was not reasonable for Miller to wait until November 5, 2020, to file her motion. Laurie emphasized that no civil action had been filed against the Hudsons at 5 the time their divorce was finalized, and in fact, Miller did not file her civil action until almost two years after the divorce. She clarified that there had been no decision or order in the general division of the common pleas court determining that the domestic relations division was the proper venue for Miller's complaint, nor was there any indication that the property was subject to potential civil forfeiture. Finally, Laurie denied that she holds herself out as married to Estel. She claimed that she allows Estel to reside with her for safety reasons.
{¶ 11} Estel, too, argued that Miller's motion was untimely because it was not filed within a year of the final divorce entry, nor was it filed within a reasonable time. He insisted that he could not have committed a fraud upon the court given that he was incarcerated and never filed an answer or appeared in court. Estel maintained that he had no notice that Miller was pursuing financial sanctions against him until two years after the divorce, and she waited until five years after the divorce was final to pursue a remedy in the domestic relations court. And like Laurie, he denied that the divorce was a "sham."
{¶ 12} In her reply, Miller reiterated her previous arguments. She insisted that she properly relied on Civ.R. 60(B)(5) as the basis for her motion. She also insisted that she is entitled to an evidentiary hearing.
{¶ 13} In a judgment journalized February 3, 2021, the trial court concluded that it could not reach the merits of Miller's complaint and motions because (1) it lacks 6 jurisdiction under R.C. 3105.011 because Miller's claims are not "domestic relations matters"; (2) the equity powers of the court to divide property in a divorce action do not confer upon it the authority to enter a judgment for damages; and (3) Civ.R. 24 is expressly inapplicable to divorce proceedings. Alternatively, the court found that Miller's claim was untimely and she had an alternative remedy because an action to set aside a fraudulent conveyance under R.C. 1336.01 et seq. survives a divorce court's judgment allocating property between a husband and wife.
{¶ 14} Miller appealed. She assigns the following errors for our review:
1. The trial court committed reversible error in holding that it lacked subject matter jurisdiction to entertain Appellant's claims and in holding that Appellant was not entitled to intervene in the case.
2. The trial court committed reversible error by denying and dismissing Appellant Jazzmin Miller's Motion to Intervene, Motion to Set Aside Judgment of Divorce under Civ.R. 60(B), and proposed Intervenor Complaint without first holding an evidentiary hearing.
3. The trial Court committed reversible error in finding that Appellant's claims were not timely asserted.
II. Law and Analysis
{¶ 15} In her first assignment of error, Miller argues that the trial court erred in refusing to allow her to intervene in the divorce action. She contends that the domestic 7 relations court has broad authority to determine the classification or disposition of marital property, and "[t]his jurisdiction necessarily extends to the claims of third parties who have an interest in the property to be disposed of in the divorce proceeding." She claims that she has "and at all relevant times had" an interest in the Hudsons' property, and their property was subject to civil forfeiture upon Estel's conviction. Finally, she maintains that she has a valid interest in the property by virtue of her civil claims against Estel, which had been tolled by her minority, and were ultimately reduced to judgment in the general division of the court of common pleas. She describes her interest as an equitable lien entitling her to joinder under Civ.R. 75(B)(1).
{¶ 16} Laurie responds that Miller has no legal interest in the property that was subject to division in the divorce action, and she emphasizes that no civil forfeiture was ever ordered. Even if the property was subject to civil forfeiture, Laurie argues, a civil forfeiture does not transfer property from a defendant to a third party for restitution. She contends that while courts have allowed parties to be joined as party defendants where they have a claim or interest that may be adversely affected by divorce proceedings, no Ohio statute authorizes third parties to intervene in divorce actions. She insists that Miller has no claim or interest, and, in fact, did not even file her lawsuit against Estel until two years after the divorce was finalized.
{¶ 17} Estel argues that there was no civil litigation pending against him at the time of the divorce proceedings, and Miller had no legal interest to the marital property at 8 the time it was divided. And while a court may join a third party with a legal interest in marital property, Estel claims that the court could do so "[o]nly if she had perfected said interest." Estel echoes Laurie's position that no civil forfeiture action was filed by the state, and if it had been, the property would be forfeited to the state-not Miller.
{¶ 18} In her reply, Miller argues that because the state could have initiated civil forfeiture proceedings, the transfer of marital property to Laurie was a fraudulent conveyance. She claims that she has an equitable lien on the transferred property that was reduced to a judgment lien when she filed her certificates of judgment. She contends, therefore, that she has a "claim or interest in property involved in the divorce action, which claim or interest may be adversely affected by the divorce proceedings" Miller insists that the Lucas County courts must provide her a forum to vindicate her rights and enforce her judgment. And she contends that the trial court was required to conduct an evidentiary hearing on her Civ.R. 60(B) motion.
{¶ 19} Intervention is ordinarily governed by Civ.R. 24 and permits "anyone" to intervene in an action when a state statute confers a right to do so or when the applicant claims an interest in property that is the subject of the action and the disposition of that action may impair or impede the applicant's ability to protect that interest. Civ.R. 75(B) provides, however, that Civ.R. 24 "shall not apply in divorce, annulment, or legal separation actions." See also Maher v. Maher, 64 Ohio App.2d 22, 24, 410 N.E.2d 1260 (6th Dist.1978) ("Civ.R. 24 * * * is expressly made inapplicable to divorce 9 proceedings."). Under Civ.R. 75(B)(1), however, "[a] person * * * claiming an interest in property * * * out of which a party seeks a division of marital property, a distributive award, or an award of spousal support or other support, may be made a party defendant." We have construed "interest" as used in Civ.R. 75(B)(1) to mean "a lien or ownership, legal or equitable." Id.
{¶ 20} The trial court provided four reasons for dismissing Miller's complaint and motions: (1) it lacked jurisdiction under R.C. 3105.011; (2) its equity powers do authorize it to enter judgment for damages; (3) Civ.R. 24 is inapplicable to domestic relations matters, and Civ.R. 75(B)(1) does not permit intervention because Miller does not possess a lien or claim legal ownership in any property distributed under the final judgment of divorce; and (4) Miller's application was untimely and she has an alternative remedy under R.C. 1336.01.
{¶ 21} We review a trial court's denial of a motion to intervene in a domestic relations action under an abuse-of-discretion standard. Stricker v. Stricker, 1st Dist. Hamilton No. C-060435, 2007-Ohio-3309, ¶ 16. "We review de novo the question of law whether a trial court ha[s] subject-matter jurisdiction." Bursley v. Bursley, 6th Dist. Huron No. H-18-006, 2019-Ohio-1556, ¶ 42.
{¶ 22} The trial court relied on two cases in dismissing Miller's intervenor complaint: Maher v. Maher, 64 Ohio App.2d 22, 410 N.E.2d 1260, and Phillips v. Phillips, 4th Dist. Vinton Case No. 96CA503, 1997 WL 188780 (Apr. 5, 1997). 10
{¶ 23} In Maher, the guardian ad litem for the husband's illegitimate daughter sought to intervene in the divorce action between the child's father and his wife (who was not the child's mother). We found that the domestic relations court properly dismissed the daughter from the divorce proceedings. We observed that generally, in the absence of a statute authorizing intervention, third persons have no right to intervene in a divorce action "unless they have a claim or interest in property involved in the divorce action, which claim or interest may be adversely affected by the divorce proceedings." Id. at 23. We explained that "interest" means "a lien or ownership, legal or equitable." Id. at 24. We found that because no support order had been entered, the child had "no interest of either a direct or intermediate nature in any particular property of her father. Id. Accordingly, she did "not fit the category of persons who can be made party defendants under Civ.R. 75(B)(1)."
{¶ 24} In Phillips, a client sued his former attorney for fraud, conversion, and malpractice in two civil actions in the Ross County Common Pleas Court in 1992 and 1993. The attorney's wife initiated divorce proceedings against the attorney in 1994 in Vinton County, even though both she and her husband were residents of Ross County. The attorney did not contest the divorce (or the venue) and the wife was awarded all marital property. A judgment of divorce was entered February 3, 1995, and a nunc pro tunc was entered five months later. 11
{¶ 25} On November 13, 1995, the client sought to intervene in the divorce proceedings, alleging that his former attorney fraudulently conveyed property to his wife in order to make himself judgment-proof The client contended that he was entitled to intervene as of right under Civ.R. 24(A)(2), which permits intervention in an action "when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." The court found that in order to be entitled to intervention as of right, a movant must show that (1) the application is timely; (2) the applicant claims an interest in property that is the subject of the action; (3) disposition of the action may impair or impede the applicant's ability to protect that interest; and (4) the applicant's interest is not adequately represented by the existing parties.
{¶ 26} The court did not acknowledge that Civ.R. 24 is inapplicable to divorce actions, however, it denied the client's motion because it found that his claim was contingent and had not been reduced to judgment. The appellate court affirmed. While it was skeptical that the rule requires a judgment, it determined that it was unnecessary to address that question. Instead, it reasoned that the client's motion would have required the Vinton County court to rule upon the merits of the client's malpractice, fraud, and conversion claims-those claims were already pending in the two Ross County cases 12 which had been filed before the divorce action and had been set for trial. The appellate court, therefore, found that the Vinton County Common Pleas Court did not abuse its discretion in denying the client's motion to intervene.
{¶ 27} The court also observed that intervention after the entry of judgment "is quite unusual and is seldom granted unless it is the only way to protect the intervenor's rights." Id. at *4. It found that there was no abuse of discretion in denying the post-judgment motion to intervene because the client had an alternative remedy available under R.C. 1336.01 et seq. to contest the purportedly fraudulent conveyance between the attorney and the attorney's wife, and that remedy survives a domestic relations court's allocation of marital property.
{¶ 28} Miller does not attempt to distinguish Phillips. But she claims that unlike the child in Maher, 64 Ohio App.2d 22, 410 N.E.2d 1260, she has a "real and vested" interest in the Hudsons' property, which accrued when Estel began abusing her in the marital home. She maintains that her interest was reduced to judgment once she reached the age of majority. Miller cites Salameh v. Doumet, 2019-Ohio-5391, 151 N.E.3d 83 (1st Dist), which she claims supports the domestic relations court's jurisdiction.
{¶ 29} In Salameh, Husband and Wife resided together in the marital home. The home had been purchased in 2014. Husband claimed that he could not obtain financing, so on the advice of his real estate broker, his sister agreed to purchase the home in the name of Husband and Wife, who would then transfer it to Sister. Husband, Wife, and 13 Sister signed a "Terms of Transfer" document, which stated that Husband and Wife agreed to transfer title and ownership to Sister for zero dollars immediately following the closing.
{¶ 30} Two years later, Husband filed a complaint for divorce. Wife moved under Civ.R. 75(B)(1) to add Sister as a third-party defendant because she owned the marital home. Over Sister and Husband's objections, the magistrate granted the motion, reasoning that under Civ.R. 15, Civ.R. 75, and R.C. 3105.171, the trial court had jurisdiction to determine whether the residence was a marital asset and whether Husband engaged in a fraudulent conveyance of that asset to Sister.
{¶ 31} Sister filed a motion to set aside the magistrate's order, arguing that the domestic relations division lacked subject-matter jurisdiction. The trial court concluded that because the marital property was titled to Sister, and Wife was asserting a claim to the home, the property was subject to a determination and valuation under R.C. 3105.171.
{¶ 32} The case was tried and the court found in its Final Judgment for Divorce that the marital home was marital property and Sister was unjustly enriched when Husband engaged in financial misconduct by transferring the home to her. It voided the transfer and ordered that it be sold. On appeal, Sister did not challenge her joinder; she challenged the trial court's authority to void the transfer. The court commented nevertheless that "[t]itled owners of real property, or persons with some purported interest in real property, are necessary and indispensable parties to litigation seeking to 14 divest those owners of their interest therein." Salameh, 2019-Ohio-5391, 151 N.E.3d 83, ¶ 46.
{¶ 33} Here, unlike Salameh, Miller was not the titled owner of any marital property distributed in the final judgment of divorce. Rather, she obtained a judgment two years after the divorce. She seeks to intervene in the Hudsons' divorce action (1) to assert fraud claims, and (2) to collect on her judgment. The domestic relations division is not the forum for Miller to accomplish either of these objectives.
{¶ 34} Under R.C. 3105.011(A), the domestic relations division of the court of common pleas has "full equitable powers and jurisdiction appropriate to the determination of all domestic relations matters." But its jurisdiction is limited to the determination of domestic relations matters. Mitchell v. Mitchell, 11th Dist. Portage No. 2007-P-0023, 2008-Ohio-833, ¶ 60. "If the matter is not primarily a domestic relations matter, then the domestic relations court does not have jurisdiction under R.C. 3105.011." Howard v. Pharis-Rine, 5th Dist. Licking No. 08 CA 00114, 2009-Ohio-3981, ¶ 15, citing In re Dunn, 101 Ohio App.3d 1, 5, 654 N.E.2d 1303 (12th Dist.1995).
{¶ 35} "Domestic relations matters," as defined in R.C. 3105.011, means:
(1) Any matter committed to the jurisdiction of the division of domestic relations of common pleas courts under section 2301.03 of the Revised Code, as well as a complaint for child support and allocation of15
parental rights and responsibilities, including the enforcement and modification of such orders;
(2) Actions and proceedings under Chapters 3105., 3109., 3111., 3113., 3115., 3119., 3121., 3123., 3125., and 3127. of the Revised Code, actions pursuant to section 2151.231 of the Revised Code, all actions removed from the jurisdiction of the juvenile court pursuant to section 2151.233 of the Revised Code, and all matters transferred by the juvenile court pursuant to section 2151.235 of the Revised Code.
{¶ 36} "[T]he equity powers of the trial court in the division of property in the context of a divorce action do not confer upon that court the authority to enter a judgment for damages * * *." Gibson v. Gibson, 87 Ohio App.3d 426, 431, 622 N.E.2d 425, 428 (4th Dist.1993). See also Lisboa v. Karner, 167 Ohio App.3d 359, 2006-Ohio-3024, 855 N.E.2d 136, ¶ 9 (8th Dist.) (recognizing that domestic relations court lacks authority to enter judgment for damages). The domestic relations court, therefore, is not the proper forum for litigating tort claims. Howard v. Pharis-Rine, 5th Dist. Licking No. 08 CA 00114, 2009-Ohio-3981, ¶ 16, citing Koepke v. Koepke, 52 Ohio App.3d 47, 49, 556 N.E.2d 1198 (6th Dist. 1989). This is particularly so where the tort claims are as between a third party and a party to the divorce. See Barton v. Barton, 2d Dist. Greene No. 2015-CA-53, 2016-Ohio-5264, ¶ 27. "Any collateral claims must be brought in a separate 16 action in the appropriate court or division when the claim involves the determination of the rights of a third-party." (Internal citations and quotations omitted.) Mitchell at ¶ 60.
{¶ 37} Here, Miller asserts a tort claim-fraud-and asks the domestic relations court to award damages, invalidate transfers of properties, allow her to foreclose on properties, liquidate Estel's assets, and apply funds obtained from the sale of real and personal property to the judgment she obtained in Lucas County case No. CI-201704367. In other words, she seeks to enforce her judgment in the domestic relations court. Miller's claims are not "domestic relations matters" that the court may hear under R.C. 3105.011-they are collateral claims that must be pursued in the general division.
{¶ 38} Furthermore, Miller had no interest in the Hudsons' marital property, either legal or equitable, when the property was divided. Unlike the Sister in Salameh, 2019-Ohio-5391, 151 N.E.3d 83, none of the marital property was titled to Miller. Miller had not filed suit at the time of the divorce proceedings. And no civil forfeiture proceedings had been initiated-not that such proceedings would have benefitted Miller, given that any property subject to forfeiture would have been forfeited to the state or other political subdivision. There is no basis to permit her to intervene under Civ.R. 75(B)(1).
{¶ 39} Accordingly, we agree with the domestic relations court that it lacks jurisdiction over Miller's claims. We find Miller's first assignment of error not well-taken. Because of our resolution of her first assignment of error, we need not consider her remaining two assignments of error. 17
III. Conclusion
{¶ 40} The domestic relations court correctly concluded that under R.C. 3105.11, it lacked jurisdiction to hear Miller's claims for fraud, to declare Miller the rightful owner of all assets transferred via the court's final judgment of divorce, to order the foreclosure of real property and liquidation of other personal property to satisfy Miller's judgment, and to award punitive damages to Miller. Moreover, Civ.R. 75(B)(1) did not provide a basis for Miller to intervene in the divorce action because at the time of the final judgment of divorce, she had no lien or title respecting the Hudsons' property. We find her first assignment of error not well-taken and deny as moot her remaining two assignments of error.
{¶ 41} We affirm the February 3, 2021 judgment of the Lucas County Court of Common Pleas, Domestic Division. Miller is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.LocApp.R. 4.
Mark L. Pietrykowski, Thomas J. Osowik,, Christine E. Mayle, J. Judge Concur. 18