UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
COVINGTON DIVISION
IN RE:
JAMES MICHAEL BERGER
DEBTOR CASE NO. 92-21552
JAMES MICHAEL BERGER PLAINTIFF
VS. ADV. NO. 93-2003
MARLENE BERGER DEFENDANT
MEMORANDUM OPINION
This matter is before the Court on the defendant's Motion for Summary Judgment filed herein on February 17, 1993. The plaintiff has filed a response to the Motion. A hearing on the Motion was held on March 29, 1993, at which time the Court ruled on two of the issues raised therein and submitted a third issue for decision. The Court entered an Order pursuant to such ruling on April 7, 1993. This Court has jurisdiction of this matter pursuant to 28 U.S.C.
'1334(b); it is a core proceeding pursuant to 28 U.S.C. '157(b)(2)(I).The plaintiff initiated this matter by filing his Complaint to Determine Dischargeability of a Debt herein on January 15, 1993. An Amended Complaint alleging the core nature of the proceeding was filed on January 27, 1993. The defendant filed her Answer on January 27, 1993, and her Answer to the Amended Complaint on February 1, 1993. The Amended Complaint sought to have the Court void the obligations contained in a Separation Agreement incorporated into a divorce decree filed on February 6, 1990 in the Clermont County (Ohio) Domestic Relations Court. The plaintiff alleged that the Separation Agreement and the obligations thereunder were executed as a result of fraud.
Whether the plaintiff may attack the judgment of the Domestic Relations Court is the only issue left for decision by this Court on this motion for summary judgment. The defendant argues that Ohio Rule of Civil Procedure 60(b) requires that a party seek relief from a judgment based on fraud within one year of the entry of judgment. The plaintiff responds that his allegation is of "fraud upon the court", and that he is therefore not bound by the one year requirement.
In a copy of the Affidavit submitted by the plaintiff to the Domestic Relations Court, he states that the attorney who purported to represent both him and his wife in the divorce action served solely as an advocate for her. It is his contention that this constitutes fraud upon the court in that the Domestic Relations Court was prevented by an officer of the court (the attorney) from making an informed decision in his case. He has cited in support of his position Coulson v. Coulson, Ohio, 448 N.E.2d 809 (1983).
In that case, the court ruled that a fraud had been perpetrated upon the court on the basis of a fact pattern similar to the case at bar. In a divorce case, the husband's counsel asserted that he had represented the wife and had examined the fairness of a separation agreement dictated by the husband. The court found that this was not the case, and opined that the attorney's actions constituted fraud upon the court. The court based its decision on this issue on O.R.C.P. 60(b).
The language of that rule differs from F.R.C.P. 60(b), in that the Ohio rule does not specifically state that "[t]his rule does not limit the power of a court to ... set aside a judgment for fraud upon the court", as the federal rule does. The Supreme Court of Ohio found, however, that the disputed actions came within the purview of O.R.C.P. 60(b)(5), which provides that the court "...may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: ... (5) any other reason justifying relief from the judgment." The court specifically found that such action did not need to be brought within the one year time limitation. Id., at p. 15.
It is therefore the opinion of this Court that the defendant has not established that she is entitled to judgment as a matter of law on this issue, and that her Motion for Summary Judgment relative thereto should be overruled. An order in conformity with this opinion will be entered separately.
Dated:
By the Court -
____________________________
Judge
Copies to:
Debtor
Robert A. Goering, Esq.
Robert Trainor, Esq.