CourtListener opinion 9388732

Evidence quotes

Clean opinion text

[Cite as Sites v. Sites, 2023-Ohio-1278.]
 IN THE COURT OF APPEALS OF OHIO
 FOURTH APPELLATE DISTRICT
 LAWRENCE COUNTY

LISA SITES, :

 Plaintiff-Appellee, : Case No. 22CA2

 v. :

PAUL SITES, : DECISION & JUDGMENT ENTRY

 Defendant-Appellant. :

________________________________________________________________

 APPEARANCES:

Brigham M. Anderson, Ironton, Ohio, for Appellant.

Robert C. Delawder, Ironton, Ohio, for Appellee.
_______________________________________________________________
CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED:4-12-23
ABELE, J.

 {¶1} This is an appeal from a Lawrence County Common Pleas

Court judgment that overruled a Civ.R. 60(B) motion to vacate a

dissolution decree. Paul Sites, defendant below and appellant

herein, assigns three errors for review:

 FIRST ASSIGNMENT OF ERROR:

 "THE TRIAL COURT ABUSED ITS DISCRETION AND
 ERRED WHEN IT DETERMINED THAT A MISTAKE OR
 EXCUSABLE NEGLECT WAS NOT MADE WHEN ATTORNEY
 LAMBERT INFORMED APPELLANT THAT APPELLEE WAS
 ENTITLED TO HALF OF APPELLANT'S FULL
 MILITARY RETIREMENT PURSUANT TO CIV.R.
 60(B)(1)."

 SECOND ASSIGNMENT OF ERROR:
 2
LAWRENCE, 22CA2

 "THE TRIAL COURT ABUSED ITS DISCRETION AND
 ERRED WHEN IT DETERMINED THAT THERE WAS NO
 FRAUD OR MISREPRESENTATION BY ATTORNEY
 LAMBERT WHEN HE INFORMED APPELLANT THAT
 APPELLEE WAS ENTITLED TO HALF OF HIS
 MILITARY RETIREMENT PURSUANT TO CIV.R.
 60(B)(5)."

 THIRD ASSIGNMENT OF ERROR:

 "THE TRIAL COURT ABUSED ITS DISCRETION AND
 ERRED WHEN IT DID NOT HOLD AN EVIDENTIARY
 HEARING TO DETERMINE THE PARTY'S INTENT ONCE
 IT DETERMINED THAT QDRO WAS A LEGAL
 IMPOSSIBILITY TO APPELLANT'S MILITARY
 RETIREMENT."

 {¶2} On November 2, 2002, the parties married for the third

time. On July 30, 2020 the parties filed their petition for

dissolution and separation agreement that, inter alia, addressed

appellant's military retirement:

 The wife will receive a monthly sum of $1445.00 per month
 from military retirement benefits. This shall begin
 August 2, [2]020 payable on or before the 10th of each
 month. A Qualified Domestic Relations Order (QDRO) will
 issue. The husband will pay the benefits directly to
 the wife until the month they are withheld from his
 retirement.

 Each party will receive and maintain all rights to any
 other retirement benefits, annuities, 401K or similar
 benefits or work-related benefits he/she has at the time
 of this Agreement except as may be otherwise set forth
 herein.

 {¶3} At the parties' September 25, 2020 hearing, appellee

appeared with counsel and appellant appeared pro se. When asked
 3
LAWRENCE, 22CA2

if he wished to retain counsel, appellant stated, "Um, there's

some things in the paperwork that's not agreed upon now." When

asked, "[o]therwise the separation agreement provides that Lisa

would receive $1,445.00 from your month[ly] from your military

retirement benefits, correct Mr. Sites," appellant replied,

"Yes." Appellant also agreed monthly payments would begin

August 2, 2020, and he agreed with appellee's attorney's

summation that "[t]here will be no spousal support, as the wife

is receiving her vehicle paid for with marital money, a property

settlement, and retirement benefits." In addition, appellant

agreed that the separation agreement appears to be fair and

equitable and he wanted the trial court to adopt the agreement.

Consequently, the court approved the separation agreement and

granted the parties a dissolution of marriage.

 {¶4} On December 2, 2020, appellant filed a Civ.R.

60(B)(1),(3) and (5) motion to vacate the trial court's

September 25, 2020 judgment. In support of his motion,

appellant argued that the judgment is based either on mistake or

excusable neglect because, appellant alleged, appellee's counsel

incorrectly informed appellant that appellee is entitled to one-

half of appellant's full (1989 to 2011) military retirement

benefit. Appellant contends that, even though his military

retirement benefit began to accrue in 1989, appellee should only
 4
LAWRENCE, 22CA2

be entitled to one-half the value of the retirement benefit from

the date of their 2002 marriage to his 2011 retirement, not the

date that he began military service.

 {¶5} At the hearing to consider the Civ.R. 60(B) motion,

several witnesses testified. Appellee testified that (1) the

parties first married from 1992 to 1994, again from 1995 to

1998, and their third and final marriage began November 2002 and

ended September 2020, and (2) appellee waived all spousal

support because the parties agreed that appellee would receive

one-half of appellant's military retirement benefit. Further,

appellee agreed not to pursue any division of appellant's

teacher's pension because he had only taught for the past 10 or

11 years - "I just felt like that's what we were together

through was the military career. We made an agreement that I

would take care of the kids and everything, he would do his

military career."

 {¶6} Appellee's trial counsel also testified at the hearing

and recalled appellant's statement in a July office meeting that

he would be "willing to give her $2,500 a month for five years.

Then if she remarried it would go to half or at the end of five

years it would go to half. And then she indicated she was

willing to accept that if it did not decrease during the

lifetime." Counsel testified that appellant did not wish to pay
 5
LAWRENCE, 22CA2

spousal support, but regarding appellant's military retirement

benefit:

 I don't think there was ever a discussion that she was
 entitled to half of that. That was more of a way of
 coming up with her, giving her the money that he had
 actually originally said he was willing to give her.
 The easiest way to do that was to give her money out of
 his retirement and then that way we didn't get into
 spousal support issues, uh made it easier for her to get
 her money every month, and I think even he agreed that
 that way he didn't have the money, it would come out of
 retirement, and then he didn't have to worry about it.

Appellee's counsel testified that he told the parties that "any

retirement accumulated during the marriage she would be entitled

to one half," that he also believed appellee would be entitled

to spousal support based on the inequities in the parties'

incomes, and the parties' agreed upon amount constituted their

agreement irrespective of various retirement funds. Counsel

also testified that on at least two occasions, he changed the

agreement at appellant's direction. Once, appellant came to

counsel's office with proposed changes that counsel recommended

to appellee she reject, but appellee nevertheless accepted those

changes. Appellant also wanted the $2,500 monthly payments to

be reduced by half if appellee remarried "because he knew she

would be remarried." Counsel further testified that appellant

did not express or indicate any confusion about the agreement's

terms and, although two months elapsed between the agreement's
 6
LAWRENCE, 22CA2

execution and the final hearing, appellant did not indicate he

wanted to change any of the agreement's terms. At the hearing,

appellee's counsel also read appellant's text message to

appellee that states "we will split the savings and checking,

you get $2500.00 a month for three years and then it goes to

$1445.00 a month for [rest] of life, I pay insurance, I

survivor's benefits."

 {¶7} Appellant acknowledged that he agreed to the terms of

the separation agreement, but maintained that his agreement

stemmed from his misunderstanding of "the law" and that he

subsequently learned that he had been "mislead [sic.]."

Appellant testified that he and appellee married three separate

times, most recently in November 2002, and he twice met with

appellee's counsel and, when asked if he understood that counsel

represented only appellee, he replied, "Yes and no." In the

original separation agreement, appellant agreed to pay $1,000

per month for three years if appellee babysat appellant's

grandson three days per week, but appellant also wanted the

agreement to continue only until appellee remarried. However,

when the attorney said, "she wants three years of this money no

matter what," appellant asked, "what's the minimum I have to

give her on my retirement because I said this is, that's not

what we agreed upon." Appellant further stated that appellee's
 7
LAWRENCE, 22CA2

counsel told him appellee is entitled to 50% of his retirement,

"no matter what," that the $1,445 is exactly half his military

retirement, that he began military service in April 1989 and

retired in November 2011, but the marital portion of his

retirement should only accrue from 2002 to 2011. Also,

appellant contacted an accounting service and learned that under

the military formula appellee would not be entitled to one-half

of his entire retirement benefit, but instead only the marital

portion. Appellant stated that (1) he told appellee he would

give her $1,000 per month until she either remarried or quit

babysitting their grandson, which they estimated to be three

years, and (2) he did not understand the difference between a

spousal support award or a property award. Appellant further

testified that he receives $2,800 per month for his service-

connected disability, $2,880 per month from his military

retirement, and $2,180 every two weeks from his $76,000 annual

salary for his current teaching position. Appellant also

confirmed that (1) the dissolution proceedings did not consider

his potential retirement from his current teaching position, (2)

he agreed to pay $1,000 per month for 36 months as a property

division, and (3) if appellant sold the real estate, he would

pay appellee $10,000 plus any balance due on the 36 payments of

$1,000.
 8
LAWRENCE, 22CA2

 {¶8} On April 6, 2021, after consideration of the evidence

adduced at the hearing, the magistrate recommended the trial

court deny appellant's motion for relief from judgment. The

magistrate pointed out that at the dissolution hearing the trial

court:

 engaged in extended dialogue with Mr. Sites concerning
 his right to seek his own counsel and that the Court
 would grant a continuance if he wished to do that.
 Further, there was extended discussion concerning the
 agreement and the fact that he was in agreement with
 those terms. Mr. Sites had suggested changes to the
 Separation Agreement on several occasions, and most
 recently had requested and received a change to the
 Separation Agreement at the time of the hearing.

The magistrate further determined that (1) appellant confirmed

to the court he agreed "with all terms of the final draft of the

Separation Agreement," (2) appellee's attorney testified that he

told appellant that appellee "would be entitled to one-half of

the marital portion of the military retirement," and (3)

appellant arrived at "a number" he was willing to pay, and "it

was easier to use the one military retirement account rather

than moving funds from two or three accounts" to achieve the

desired and agreed upon goal. Also, despite the parties'

18-year marriage, and the fact that appellant earned

significantly more than appellee, no spousal support had been

awarded nor any division of appellant's 11-year teacher's
 9
LAWRENCE, 22CA2

retirement fund. Additionally, R.C. 3105.171 limits any

modification of a property division award to circumstances in

which both parties consent to the modification and, in this

instance, both parties did not consent. The magistrate further

observed that a mistake does not encompass an error in judgment

or remorse and that Civ.R. 60(B)(5) should be used sparingly and

"generally reserved to vacate a judgment upon extraordinary and

unusual circumstances," and neither of those circumstances exist

in the present case.

 {¶9} Appellant objected to the magistrate's decision but,

after review, the trial court overruled the objections because

the court had engaged in "extended dialogue" with appellant

concerning his right to seek counsel and offered to continue the

matter if he wished to consult counsel. Further, "there was an

extended discussion concerning the agreement and the fact that

he was in agreement with those terms," that appellant suggested

changes to the agreement on several occasions, and even during

the hearing he requested, and received, a change to the

agreement. The court noted that appellee's attorney testified

he told appellant

 Mrs. Sites would be entitled to one-half of the marital
 portion of the military retirement. Mr. Lambert further
 testified that Mr. Sites had arrived at ‘a number' that
 he was willing to pay. Mr. Lambert testified it was
 easier to use the one military retirement account rather
 10
LAWRENCE, 22CA2

 than moving funds from two or three accounts in achieving
 the total desired.

The trial court further observed that, despite the parties'

18-year marriage and the fact that appellant earned

"significantly more" than appellee during their marriage, the

agreement did not provide any spousal support or division of

appellant's teacher's retirement fund. Consequently, the trial

court denied appellant's motion for relief from judgment. This

appeal followed.

 I.

 {¶10} In his first assignment of error, appellant asserts

that the trial court erred when it denied his request for Civ.R.

60(B)(1) relief. In particular, appellant argues that a mistake

occurred when, he contends, appellee's attorney incorrectly

informed appellant that appellee would be entitled to one-half

of appellant's full military retirement benefit, rather than

one-half of the marital portion of the benefit.

 {¶11} Under Civ.R. 60(B), a trial court may relieve a party

from a final judgment, order, or proceeding for the following

reasons:

 (1) mistake, inadvertence, surprise or excusable
 neglect;

 (2) newly discovered evidence which by due diligence
 could not have been discovered in time to move for a new
 11
LAWRENCE, 22CA2

 trial under Rule 59(B);

 (3) fraud (whether heretofore denominated intrinsic or
 extrinsic), misrepresentation or other misconduct of an
 adverse party;

 (4) the judgment has been satisfied, released or
 discharged, or a prior judgment upon which it is based
 has been reversed or otherwise vacated, or it is no
 longer equitable that the judgment should have
 prospective application; or

 (5) any other reason justifying relief from the
 judgment.

 {¶12} To prevail on a motion under Civ.R. 60(B), the movant

must demonstrate that: (1) the party has a meritorious defense

or claim to present if relief is granted; (2) the party is

entitled to relief under one of the grounds in Civ.R. 60(B)(1)-

(5), and (3) the motion is made within a reasonable time. GTE

Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d

146, 150, 351 N.E.2d 113 (1976). A court must overrule the

motion if the moving party fails to establish any of these

requirements. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17,

20, 520 N.E.2d 564 (1988).

 {¶13} "Civ.R. 60(B) is a mechanism whereby a party or

parties may obtain relief by motion from a judgment or order."

In re Whitman, 81 Ohio St.3d 239, 242, 690 N.E.2d 535 (1998).

The Rule strikes a balance between the finality of judgments and

a perfect result "by vesting the courts with broad, but not
 12
LAWRENCE, 22CA2

unlimited authority to set aside judgments." Knapp v. Knapp, 24

Ohio St.3d 141, 145, 493 N.E.2d 1353 (1986); Oulette v. Oulette,

2020-Ohio-705, 152 N.E.3d 528, ¶ 10 (6th Dist.).

 {¶14} An appellate court's standard of review of a trial

court's Civ.R. 60(B) decision is generally the abuse of

discretion standard. Elliot v. Smead Mfg. Co., 4th Dist.

Hocking Nos. 08CA13 & 08AP13, 2009-Ohio-3754, ¶ 7, State ex rel.

Richard v. Seidner, 76 Ohio St.3d 149, 151, 666 N.E.2d 1134

(1996), Rose Chevrolet, 36 Ohio St.3d at 20. The term "abuse of

discretion" implies that a court's attitude is unreasonable,

arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983), AAAA Ents., Inc. v.

River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990).

 {¶15} The dispute in the case sub judice involves the

division of marital property. We recognize that R.C. 3105.171

provides:

 (I) A division or disbursement of property or a
 distributive award made under this section is not
 subject to future modification by the court except upon
 the express written consent or agreement to the
 modification by both spouses.

Recently, in Walsh v. Walsh, 157 Ohio St.3d 322, 2019-Ohio-3723,

136 N.E.3d 460, the Supreme Court of Ohio addressed the
 13
LAWRENCE, 22CA2

relationship between R.C. 3105.171(I) and Civ.R. 60(B). In

Walsh, a former spouse requested relief from judgment and sought

to modify the portion of the divorce decree that divided the

other spouse's military pension benefits. The trial court

granted the motion and the court of appeals affirmed, but the

Supreme Court of Ohio reversed and held that the trial court

lacked the authority to modify the decree. Id. at ¶ 1.

Although the court cited the military's 10/10 rule (10 U.S.C.

1408(d)(2) - military will issue pension payments directly to

former spouse if marriage existed for at least ten years and

member spouse provided at least ten years of military service),

the court pointed out this rule does not prevent an order to a

military service member to personally pay a former spouse a

portion of the member's monthly retirement payments if the

marriage lasted less than ten years. Id. at ¶ 8, citing

Gilbert, A Family Law Practitioner's Road Map to the Uniformed

Services Former Spouses Protection Act, 32 Santa Clara L.Rev.

61, 69 (1992). Citing Civ.R. 60(B)'s requirements to modify a

final judgment, the court also pointed out that the divorce and

dissolution statutes contain restrictions that limit a court's

authority to modify a final decree. Id. at ¶ 19, citing R.C.

3105.171(I), R.C. 3105.18(E), R.C. 3105.63(A) and (C). Id. at ¶

27. The Walsh court, citing Morris v. Morris, 148 Ohio St.3d
 14
LAWRENCE, 22CA2

138, 2016-Ohio-5002, 69 N.E.3d 664, held that parties cannot use

Civ.R. 60(B) to circumvent statutory restrictions on the

modification of a decree. Id. at ¶ 22. In the case sub judice,

we again point out that the trial court emphasized that appellee

did not consent to any modification of the parties' final

decree.

 {¶16} Moreover, under Civ.R. 60(B) "[m]istake," refers to

the mistakes of a party or a party's agent. Doyle v. St. Clair,

9th Dist. Lorain No. 16CA010967, 2017-Ohio-5477, ¶ 14.

Typically, courts grant relief based on mistake when the mistake

is a mutual mistake, shared by both parties, regarding a

material fact. Quezada v. Vizcaino, 8th Dist. Cuyahoga No.

111124, 2022-Ohio-2683, ¶ 12, citing Smith v. Smith, 8th Dist.

Cuyahoga No. 83275, 2004-Ohio-5589, ¶ 17. Ohio courts have held

that "relief from [a divorce] decree will not be granted when

the ‘alleged' mistake was merely a unilateral mistake on the

part of one party or her counsel." In Irwin v. Irwin, 11th

Dist. Lake No. 95-L-102, 1996 WL 586762 (Sept. 27, 1996), the

parties agreed to divide their "defined benefit plan," but later

disputed the meaning of the term "defined benefit plan." The

Ninth District determined that wife and her counsel had been

"fully aware of the existence of the profit sharing plans when

the settlement agreement [which was incorporated into the
 15
LAWRENCE, 22CA2

divorce decree] was negotiated." Id. Concluding that wife

failed to "ensure that the [divorce] agreement was consistent

with her intent," the court held that appellant's carelessness

caused the mistake, and, because the mistake was unilateral,

wife should not be entitled to Civ.R. 60(B)(1) relief.

 {¶17} The Tenth District also recently addressed Civ.R.

60(B)(1) with respect to pro se litigants:

 " ‘[c]ourts should not generally use Civ.R. 60(B)(1) to
 relieve pro se litigants who are careless or unfamiliar
 with the legal system.' " Gamble Hartshorn, LLC v. Lee,
 10th Dist. No. 17AP-35, 108 N.E.3d 728, 2018-Ohio-980,
 ¶ 26, quoting Dayton Power & Light v. Holdren, 4th Dist.
 No. 07CA21, 2008-Ohio-5121, ¶ 12. We have also noted "
 ‘[a] party who is informed of court action against him
 and fails to seek legal assistance does so at his risk
 and such conduct cannot be said to constitute "excusable
 neglect" under Civ.R. 60(B)(1) or (5) unless a
 compelling reason is presented, like a serious illness.'
 " Gamble Hartshorn, LLC at ¶ 29, quoting Yuhanick v.
 Cooper, 7th Dist. No. 96-CO-45, 1998 WL 811355, 1998
 Ohio App. LEXIS 5527 (Nov. 16, 1998).

Myers v. Ohio Department of Rehabilitation and Correction, 10th
Dist. Franklin No. 21AP-106, 2022-Ohio-1412, ¶ 25.

 {¶18} In the case sub judice, appellant argues that he,

acting pro se, relied on appellee's attorney's representation

that, according to his testimony, included incorrect

information. However, our review of the record leads us to

conclude that, at most, appellant's alleged reliance either

constitutes a unilateral mistake, or, more likely, not a mistake
 16
LAWRENCE, 22CA2

at all. Appellant maintained at the hearing that dividing his

military retirement benefit formed a portion of the parties'

goal to achieve a fair and equitable division of their property

and, as part of that plan, the parties agreed to use appellant's

military retirement proceeds to provide funds to achieve that

specific monthly dollar amount that appellant agreed to pay

appellee. Importantly, neither party contemplated that an equal

division of the military retirement benefit should constitute a

50 percent division of all income, assets and retirement benefit

funds, but rather to serve merely as a conduit to help to

provide funds for the parties' total agreed amount.

 {¶19} Appellant argues that in Quesinberry v. Quesinberry,

2022-Ohio-635, 185 N.E.3d 1163 (2d Dist.), former wife filed a

motion for relief from judgment and alleged that the parties had

no meeting of the minds. Husband reported $149,000 in income,

wife reported no income, their agreement awarded wife $85,000

from husband's retirement account, but provided no spousal

support. Later, wife filed a Civ.R. 60(B) motion to vacate the

decree and argued that husband failed to disclose marital

assets. The trial court refused to vacate the dissolution

decree and noted that during the hearing, wife acknowledged she

read, understood and was satisfied with the agreement's terms.

Id. at ¶ 13. On appeal, the court concluded that the agreement
 17
LAWRENCE, 22CA2

was the product of a mutual mistake about the availability of

child support and spousal support and, absent any reason to

question her husband's veracity, wife should not be accountable

for her failure to consult with an attorney. Id. at ¶ 43.

 {¶20} Appellant contends that like Quesinberry, a mistake

occurred in the case at bar. Appellee points out, however, that

unlike Quesinberry's intentional misrepresentations, the case at

bar does not involve an allegation that one party intentionally

misled the other. Here, although we recognize that the evidence

conflicts, appellant alleges that appellee's trial counsel

provided inaccurate information regarding the division of

retirement benefits.1 Although we recognize that Quesinberry

attempted to distinguish Walsh and pointed out that their case

"did not involve an attempt to use Civ.R. 60(B) to vacate an

entire divorce or dissolution decree," the entire decree is

"subject to being vacated" under Civ.R. 60(B)(1) when the

parties' mutual mistake regarding wife's entitlement to spousal

and child support "means that there was no meeting of the minds

and no valid contract on which to base the dissolution decree."

Id. at ¶ 44.

 1
 Appellee also observes that during oral argument,
appellant, for the first time, sought to set aside the entire
separation agreement. However, that is not the nature of the
relief appellant sought in the trial court.
 18
LAWRENCE, 22CA2

 {¶21} Although we concede that the events in the case at bar

are somewhat difficult to decipher, what is clear is that the

parties began their negotiations with a certain monthly payment

in mind and their consideration of the military retirement

benefit merely served as a component part to help to facilitate

the makeup of their agreed upon total monthly payment.

Furthermore, we point out that the trial court informed

appellant that he could obtain a continuance to seek the advice

of counsel, but he declined to do so. The court also asked

appellant if he understood the agreement and if he agreed to its

terms, and he affirmatively stated he did. Also, when the court

asked appellant if he believed the separation agreement (an

agreement as the trial court pointed out, failed to include any

provision for spousal support even in light of the parties' 18-

year marriage and disparity of income) to be fair and equitable

and if he wanted the court to approve the agreement, appellant

answered affirmatively. The appellee also points out that, at

the parties' first meeting, appellant himself informed

appellee's counsel of the parties' agreement and asked counsel

to prepare the paperwork. Further, appellant dictated to

counsel the amount of money he wanted to pay to appellee each

month, rather than engage in a specific, detailed discussion

about appellant's various retirement benefits or any other
 19
LAWRENCE, 22CA2

sources of income. Moreover, appellant had ample opportunity to

review the parties' agreement and we recognize that he sought,

and received, several modifications to the agreement. Also,

after appellant notified the court that the military would not

withhold money from his retirement benefit for appellee, the

parties discussed other direct payment methods to appellee and

the creation of a bank account in order to limit any future

contact with each other. Obviously, the fact that the military

would not withhold money for appellee's benefit was known, and

fully discussed, prior to the issuance of the final decree.

 {¶22} After our review in the case sub judice, we agree with

the trial court's conclusion that appellant's actions more

accurately represent a change of heart rather than a mutual

mistake, or a mistake at all. As the trial court emphasized, a

review of the hearing transcript reveals that appellant knew the

military would not withhold funds. Further, the parties did not

intend to apply a mechanical formula to arrive at a property

division, but instead agreed on a number that each party

accepted. As the trial court stated, "mistake does not

encompass an error in judgment or remorse subsequent to the

execution and acceptance of the agreement by the Court."

Consequently, we conclude that the trial court's determination

in this matter does not constitute an abuse of the court's
 20
LAWRENCE, 22CA2

discretion.

 {¶23} Accordingly, based upon the foregoing reasons, we

overrule appellant's first assignment of error.

 II.

 {¶24} In his second assignment of error, appellant asserts

that the trial court abused its discretion when it determined

that appellee's trial counsel committed no fraud or

misrepresentation. Civ.R. 60(B)(5), known as the "catch all"

provision, provides that a trial court may relieve a party from

a final judgment, order, or proceeding for any other reason

justifying relief from the judgment. A party is entitled to

relief from judgment under the "catchall" provision if he or she

can demonstrate any other reason not listed in Civ.R. 60(B)(1)-

(4) justifies relief. Civ.R. 60(B)(5). However, parties may

not use this provision as a substitute for other more specific

provisions of Civ.R. 60(B)(1)-(4). Caruso-Ciresi, Inc. v.

Lohman, 5 Ohio St.3d 64, 66, 448 N.E.2d 1365 (1983).

 {¶25} Appellant argues that in Dunford v. Dunford, 4th Dist.

Gallia No. 13CA7, 2014-Ohio-617, the parties, married 30 years,

entered into a separation agreement when husband had the benefit

of counsel, but wife did not. Although the dissolution decree

did not reserve jurisdiction to modify the spousal support
 21
LAWRENCE, 22CA2

award, five years later wife moved to modify the support

provisions and claimed that when she signed the agreement, her

husband knew she experienced "extreme emotional problems and

mental difficulties," and she should have received an award of

permanent alimony. The trial court denied the motion, but on

appeal wife argued she should receive Civ.R. 60(B)(5) relief

because she established fraud. This court noted that, in light

of wife's father's testimony that wife had a seventh-grade

education, suffered from comprehension problems, and undisputed

testimony that husband's former attorney threatened wife with

jail if she refused to sign the dissolution papers, wife

arguably established a meritorious claim or defense under Civ.R.

60(B)(5). In the end, however, because wife did not file her

motion within a reasonable time, this court affirmed the trial

court's judgment. Id. at ¶ 21.

 {¶26} After our review, we do not believe a significant

parallel exists between Dunford and the facts in the case at

bar. In Dunford, the petitioner, with a seventh-grade education

and cognitive issues, also received threats of jail from

husband's attorney if she did not agree to and sign the

documents. In the case at bar, however, we find no evidence

concerning appellant's lack of education, cognitive

difficulties, or evidence of threats or fraud. Although
 22
LAWRENCE, 22CA2

appellant argues that appellee's attorney told him appellee is

entitled to one-half his retirement funds, as more thoroughly

discussed under appellant's first assignment of error the fact

remains that appellant proposed a suitable and agreed upon

monthly payment amount and appellant's military retirement

benefit formed a component part to assist the parties to achieve

their total monthly payment goal.

 {¶27} Appellant also contends that Borzy v. Borzy, 9th Dist.

Medina No. 3185-M, 2001-Ohio-1871 establishes that trial courts

have the authority to clarify and construe an original property

division provision to effectuate its judgment under R.C.

3105.171: "Where there is confusion over the interpretation to

be given to a particular clause, the trial court * * * has the

power to hear the matter, clarify the confusion, and resolve the

dispute." Here, appellant argues that the appellant's military

retirement provision is "extremely ambiguous" because it does

not break down the distribution of appellant's retirement

payments to appellee as to how it arrived at $1,445 per month.

However, we once again point out that the evidence adduced at

the motion hearing, as the trial court aptly noted, reveals that

appellant fully participated, and even dictated, specific terms

of the separation agreement. Appellant asked for, and received,

several modifications, then he ultimately signed the agreement
 23
LAWRENCE, 22CA2

and testified in open court that he understood and agreed with

the agreement's terms, even though he understood at that time

that the military would not withhold any amount of his military

pension for the appellee's benefit. Here, the evidence shows

that appellant sought agreement to the total amount to which he

now complains, and that appellee's attorney drafted the

agreement to arrive at the monthly payment that appellant

sought. Consequently, after our review we agree with the trial

court's conclusion to deny the Civ.R. 60(B)(5) request to vacate

the judgment. The facts in this case do not constitute

"extraordinary and unusual circumstances."

 {¶28} Accordingly, because we conclude that the trial court

did not abuse its discretion when it denied appellant's motion,

we overrule appellant's second assignment of error.

 III.

 {¶29} In his final assignment of error, appellant asserts

that the trial court abused its discretion when it did not hold

an evidentiary hearing to determine the parties' intent after

the parties and the court became aware that a QDRO is a legal

impossibility for appellant's military retirement. In the case

at bar, the parties' separation agreement provides "A Qualified

Domestic Relations Order (QDRO) will issue," but during the

final hearing appellant informed the court that he learned the
 24
LAWRENCE, 22CA2

military would not implement a QDRO under their specific

circumstances. Nevertheless, appellant agreed to proceed with

the final hearing and obtain a dissolution of marriage.

 {¶30} Appellant argues that in Franchini v. Franchini, 11th

Dist. Geauga No. 2002-G-2467, 2003-Ohio-6233, although the court

initially ordered a QDRO, the parties later discovered that

instead a division of property order (DPO) would be required.

The court concluded that the trial court should have conducted

an evidentiary hearing to resolve factual disputes outlined in

appellant's objection and the trial court's approval of signing

an entry to reflect a settlement agreement when it appeared that

material issues of fact remained unsettled constitutes an abuse

of discretion. Id. at ¶ 19. Appellee points out, however, that

Franchini involved a mutual mistake, whereas in the case sub

judice although the separation agreement called for a QDRO, both

parties knew at the time a QDRO was impossible and, in fact, at

the final hearing appellant so informed the court. At that

point, the parties discussed on the record the fact that the

military would not honor a QDRO under their specific

circumstances and further discussed alternative payment methods.

Moreover, the parties discussed the creation of a separate bank

account to help to facilitate the monthly payments.

 {¶31} We believe that Walsh, supra, 157 Ohio St.3d 322,
 25
LAWRENCE, 22CA2

2019-Ohio-3723, citing Morris v. Morris, 148 Ohio St.3d 138,

2016-Ohio-5002, 69 N.E.3d 664, is applicable here and restates

that Civ.R. 60(B) is not available to circumvent the statutory

restriction to modify a decree. Id. at ¶ 22. The court wrote:

 a contrary rule would ‘relieve a litigant from the
 consequences of his voluntary, deliberate choice' to
 enter into an agreement. Knapp v. Knapp, 24 Ohio St.3d
 141, 493 N.E.2d 1353 (1986), paragraph two of the
 syllabus; see Morris at ¶ 38-41. Further, allowing such
 motions would be ‘antithetical to our principle of the
 finality of judgments,' id. at ¶ 59, and encourage
 mischief by allowing those with the resources to do so
 ‘to bury their ex-spouses in a mountain of filings,' id.
 at ¶ 60. Thus, even if we were to conclude that R.C.
 3105.171(I) did not apply, the trial court still lacked
 authority to modify the divorce decree.

Walsh at ¶ 28.

 {¶32} A Civ.R. 60(B) motion for relief from judgment is not

a substitute for a direct appeal. Kolick & Kondzer v. Baumanis,

8th Dist. Cuyahoga No. 93679, 2010-Ohio-2354, ¶ 23. Thus, we

conclude that the trial court did not abuse its discretion when

it did not conduct an evidentiary hearing to consider this

particular issue in light of the fact that at the dissolution

hearing the parties fully discussed and resolved the issue.

 {¶33} Accordingly, based upon the foregoing reasons, we

overrule appellant's assignments of error and affirm the trial

court's judgment.

 JUDGMENT AFFIRMED.
 26
LAWRENCE, 22CA2

 JUDGMENT ENTRY

 It is ordered that the judgment be affirmed and that

appellee recover of appellant the costs herein taxed.

 The Court finds there were reasonable grounds for this

appeal.

 It is ordered that a special mandate issue out of this

Court directing the Lawrence County Common Pleas Court to carry

these judgments into execution.

 A certified copy of this entry shall constitute that

mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

 Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

 For the Court

 BY:__________________________
 Peter B. Abele, Judge

 NOTICE TO COUNSEL

 Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.
 LAWRENCE, 22CA2

 27