Cullimore v. Cullimore ( 2022 )

[Cite as Cullimore v. Cullimore, 2022-Ohio-3208.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
CHRISTINE CULLIMORE, :
: Case No. 21CA7
Plaintiff-Appellee, :
v. : DECISION AND JUDGMENT
: ENTRY
ADAM CULLIMORE, :
:
Defendant-Appellant. :
APPEARANCES:
Ryan Shepler, Saving & Shepler, Logan, Ohio, for Appellant.
Sierra L. Meek, Nolan & Meek Co., L.P.A., Nelsonville, Ohio, for Appellee.
________________________________________________________________
Smith, P.J.
{¶1} Adam Cullimore appeals the Judgment Entry, Decree of Divorce of the
Hocking County Common Pleas Court, Domestic Relations Division, entered
March 22, 2021, and the Judgment Entry Overruling Objections, entered June 14,
2021. On appeal, Mr. Cullimore, “Husband,” asserts five assignments of error
challenging the trial court’s rulings in the divorce decree and during the posttrial
proceedings. Having reviewed the record, we find Husband’s arguments are
without merit. Therefore, all assignments of error are hereby overruled and the
judgment of the trial court is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Hocking App. No. 21CA7 2
{¶2} Husband and Christine Cullimore, “Wife,” were married in December
2006. The parties had three children: L.C., born in 2006; A.C., born in 2009; and
P.C., born in 2015. On September 15, 2020, Wife, through counsel, filed a Motion
and Affidavit for Ex Parte Temporary Orders and Other Equitable Relief. Wife’s
affidavit averred that Husband had a significant drug problem and was violent.
Wife and the children were protected parties pursuant to a Domestic Violence Civil
Protection Order (DVCPO) filed June 15, 2020. Wife indicated Husband’s
violence was directed to her and the oldest child and that the younger children
were intimidated by violence they had witnessed. Husband was currently being
held in jail in Delaware County.
{¶3} Additionally, on September 15, 2020, Wife filed a Complaint for
Divorce with Children. Wife alleged that Husband had been guilty of gross
neglect and extreme cruelty and that the parties were incompatible. Wife requested
that the court equitably distribute the separate and marital property and debts of the
parties. Wife requested that she be designated the residential and legal custodian
of the minor children. She further requested that Husband be prohibited from
parenting time with the children. Wife requested statutory child support.
{¶4} At the time of the divorce filing, service of process for Husband was
requested at the Delaware County Jail. The Hocking County domestic court
magistrate granted ex parte temporary orders, designated Wife as the residential
Hocking App. No. 21CA7 3
parent and legal custodian and denied Husband visitation privileges. The
magistrate also made additional temporary orders relating to the parties’ joint and
separate real and personal property and debts.
{¶5} The magistrate conducted a pretrial on October 14, 2020. Reflected in
the Magistrate’s Order dated October 15, 2020, shortly before the pretrial began,
Husband sent the court and Wife’s attorney a handwritten motion for extension of
time, along with an accompanying letter. Husband indicated in the letter that he
was incarcerated. Husband also sent the court a Financial Disclosure Form
typically used by indigent parties to seek counsel in criminal cases. The magistrate
interpreted receipt of the form as a request for court-appointed counsel. The
magistrate denied the request to continue the pretrial hearing. The magistrate also
denied the motion for court-appointed counsel.
{¶6} On November 20, 2020, the magistrate conducted a temporary order
hearing. The magistrate found that Husband had been duly served. Wife testified
that the mortgage payments on the marital home were approximately four months
behind. Because her name was not on the mortgage of the marital home, the lender
would not speak to her regarding the issue. Wife also testified that she wanted to
sell some of the parties’ property, mainly motor vehicles, in order to get money to
pay towards the mortgage. Based on wife’s sworn testimony the magistrate
ordered that PennyMac Loan Services LLC be added as a third-party defendant;
Hocking App. No. 21CA7 4
that the third-party defendant was authorized and ordered to communicate with
Wife regarding the parties’ loan/mortgage options on the marital home; that
Husband was ordered to complete and return a release and a power of attorney;
that Wife was authorized to sell at her discretion a pontoon boat, an Angler boat,
Ford Bronco, golf cart, and CanAm; and that Wife keep an itemized accounting of
these transactions. The magistrate ordered Husband be served with the temporary
orders both at the Licking County Jail and when Husband appeared for
arraignment in Hocking County later in December.
{¶7} The magistrate conducted a status conference on December 14, 2020.
At the conclusion, the magistrate reiterated the previous orders and directed that
Husband be served at the Southeastern Ohio Regional Jail. The docket indicates
additional pretrials were conducted on January 8, 2021 and March 5, 2021.
However, on February 26, 2021, Husband filed a Motion to Contest Divorce, a
Motion to Be Present, and a Motion to Appoint Counsel. On March 1, 2021, the
trial court denied the motions. While the trial court denied Husband’s request to
transport him from the jail, he ordered that Husband could make arrangements to
be present at the final divorce hearing on March 22, 2021 via Zoom.
{¶8} At the final divorce hearing Wife and her mother provided sworn
testimony. Wife again testified that she wanted to sell the motor vehicles for the
purpose of paying past due debt. She testified that American Tar N Chip,
Hocking App. No. 21CA7 5
LLC1 was her husband’s business and she waived her right to the vehicles
associated with the company. At the conclusion of the hearing the trial court
ordered:
1. That Wife be granted a divorce;
2. That Wife was designated as residential parent and legal custodian of the
minor children;
3. That Husband, in accordance with child support guidelines in R.C.
3119.021, must pay $800.00 per month for the parties’ minor children;
4. That title and interest in the marital residence was vested in Wife for the
purposes of selling the residence for the best price obtainable and any
proceeds from sale were to be applied to costs associated with the property,
and that if any profit remained, the parties would share the proceeds equally,
with Husband solely responsible for any deficiencies remaining after the sale
of the property;
5. That Husband was divested of title in several motor vehicles and title
conveyed to Wife;
6. That Husband was entitled to his coin books, his personal belongings, a pull-
behind trailer, and all equipment specifically used for American Tar N Chip,
LLC, and that he remained the sole owner of American Tar N Chip, LLC.
{¶9} After the trial court entered the Judgment Entry Decree of Divorce,
Husband filed a Motion for New Trial and a Motion to Vacate Judgment. Both
motions contested the trial court’s decisions as to equitable division of property
and child support in light of his inability to participate in the divorce proceedings
due to his incarceration.
1
The business performed seal and coating of driveways.
Hocking App. No. 21CA7 6
{¶10} The trial court denied both motions. On May 17, 2021, Husband filed
Objections to the Magistrate’s decision denying both motions. Husband’s
objections were set forth as follows:
1. The Magistrate erred by denying the Defendant’s Motion to
Vacate Judgment without oral hearing.
2. The Magistrate erred by denying the Defendant’s Motion for
a New Trial.
{¶11} Husband filed an accompanying brief in support of his objections.
Essentially, Husband argued that his incarceration at the time of the divorce
hearing prevented him from introducing evidence on his own behalf and resulted in
an inappropriate division of property and an inappropriate allocation of parental
rights.
{¶12} On June 14, 2021, the trial court filed its Judgment Entry on
Objections overruling Husband’s objections. This timely appeal followed.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED BY FAILING TO PLACE
VALUATIONS UPON AND FAILING TO
EQUITABLY DIVIDE THE MARITAL PROPERTY.
II. THE TRIAL COURT ERRED BY IMPUTING INCOME
TO MR. CULLIMORE BASED ON HIS PREVIOUS
GROSS BUSINESS INCOME WITHOUT
ACCOUNTING FOR APPROPRIATE DEDUCTIONS,
AND WITHOUT HEARING APPROPRIATE
EVIDENCE AS REQUIRED BY ROCK V. CABRAL.
Hocking App. No. 21CA7 7
III. THE TRIAL COURT ERRED BY REFUSING TO
PERMIT MR. CULLIMORE TO MEANINGFULLY
PARTICIPATE IN THE DIVORCE PROCEEDINGS.
IV. THE TRIAL COURT ERRED BY DENYING MR.
CULLIMORE’S MOTION TO VACATE JUDGMENT
WITHOUT SCHEDULING AN ORAL HEARING.
V. THE TRIAL COURT ERRED BY DENYING MR.
CULLIMORE’S MOTION FOR A NEW TRIAL.
A. ASSIGNMENT OF ERROR THREE
We begin with Husband’s third assignment of error.
1. Standard of Review
{¶14} “ ‘ “As an incarcerated prisoner, [appellants have] no absolute due
process right to attend a civil trial to which he [or she] is a party.” ’ ” Sinkovitz v.
Sinkovitz, 2016-Ohio-2861, 64 N.E.3d 382 (4th Dist.) at ¶ 22, quoting Pryor v.
Pryor, 4th Dist. Ross No. 09CA3096, 2009-Ohio-6670, at ¶ 29, quoting Lopshire
v. Lopshire, 11th Dist. Portage No. 2008-P-0034, 2008-Ohio-5946, at ¶ 35.
{¶15} “ ‘There is no support in the Constitution or in judicial precedent for
the proposition that a prisoner has an absolute due process right to attend the trial
of a civil action to which he is a party.’ ” Rowe v. Stillpass, 4th Dist. Lawrence
No. 06CA1, 2006-Ohio-3789, at ¶ 21, quoting Matter of Vandale, 4th Dist.
Washington No. 92CA31, 1993 WL 235599, *2 (June 30, 1993). This includes
divorce proceedings. See Thacker v. Thacker, 12th Dist. Warren No. CA2019-09-
099, 2020-Ohio-3319, at ¶ 17, see also Rachel v. Rachel, 5th Dist. Stark No.
Hocking App. No. 21CA7 8
2012CA00243, 2013-Ohio-3692, ¶ 14. “The decision whether ‘to allow an
incarcerated party to be present is within the sound discretion of the trial court.’ ”
Thacker, supra, at ¶ 18, quoting Miklas v. Miklas, 7th Dist. Belmont No. 14BE46,
2015-Ohio-3829m at ¶ 12, citing Trammell v. Powell, 2d Dist. Montgomery No.
23832, 2011-Ohio-2978, ¶ 6. Similarly, “ ‘ “A ruling on the request of an
incarcerated criminal to prosecute a pro se civil action by requiring penal
authorities to transport him to a preliminary hearing or trial rests within the sound
discretion of the trial court.” ’ ” Pryor, supra, at ¶ 29, quoting Abuhilwa v. Board,
4th Dist. Pickaway No. 08CA3, 2008-Ohio-5326, at ¶ 7, quoting Mancino v.
Lakewood, 36 Ohio App. 3d, 219 at 221, 523 N.E.2d 332 (8th Dist.).
{¶16} Under the abuse of discretion standard of review, a reviewing court
must affirm the decision of the trial court unless it is unreasonable, arbitrary, or
unconscionable. See Breedlove v. Breedlove, 4th Dist. Washington No. 08CA10,
2008-Ohio-4887, ¶ 9, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 140 (1983). “ ‘[A]buse of discretion’ [is] * * * a view or action that no
conscientious judge could honestly have taken.’ ” State v. Kirkland, 140 Ohio
St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67, quoting State v. Brady, 119 Ohio
St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. “Indeed, to show an abuse of
discretion, the result must be so palpably and grossly violative of fact or logic that
it evidences not the exercise of will but the perversity of will, not the exercise of
Hocking App. No. 21CA7 9
judgment but the defiance of judgment, not the exercise of reason but instead
passion or bias.” White v. White, 4th Dist. Gallia No. 03CA11, 2003-Ohio-6316,
¶ 25, citing Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1(1996). Under this highly deferential standard of review, appellate courts may not
freely substitute their judgment for that of the trial court. See In re Jane Doe I, 57
Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991).2
Legal Analysis
{¶17} Husband argues the trial court refused to permit him to meaningfully
participate in the divorce proceedings and requests that the judgment be reversed.
While conceding that as an incarcerated person he did not have an automatic right
to participate, Husband contends that he obviously wished to participate in the
proceedings by filing motions asking for leave to participate, hiring counsel
immediately upon his release, and pointing out that the jail did not allow him to
participate by Zoom. Husband averred as follows in his affidavit attached to his
Civil Rule 60(B) motion for relief from judgment:
4. On or about September 15, 2020, plaintiff filed an action for divorce
against me in 20DR-129.
5. Throughout the course of case 20DR0129, the Court attempted to serve
me with a number of orders while I was incarcerated.
2
The abuse of discretion standard of review will be revisited throughout this opinion and we need not set it forth in
further detail.
Hocking App. No. 21CA7 10
6. Throughout October, I was in the Delaware County Jail. On or about
October 15, 2020, the Court ordered that I sign a release to permit Ms.
Cullimore to speak to our bank regarding the marital loan. I never received
this order while incarcerated.
7. On or about November 2, 2020, I was transported from the Delaware
County Jail to the Licking County Jail to resolve charges in Licking
County.
8. On November 20, 2020, the Court again issued temporary orders, and
directed me to be served personally, and by certified and regular mail. I
never received these orders while incarcerated.
9. On December 22, 2020, the Court again issued temporary orders, and
directed that I be served personally. I never received these orders while
incarcerated.
10. On the first day of March 2021, the Court issued a judgment entry
denying various motions that I had filed and inviting me to participate in
the final hearing by Zoom. I never received these orders while
incarcerated.
11. The only court paperwork that I received while incarcerated, other than
the initial divorce documents, were several blue court notices.
{¶18} Obviously, Husband did not participate at all in the final divorce
hearing but based upon our review of the pleadings and the Hocking County Court
of Common Pleas online docket, we conclude that Husband’s non-participation
and non-representation was his own choice. Husband was apparently financially
able to hire an attorney for his criminal cases but chose not to hire a divorce
attorney to assist by filing the documents requested by the court, making the Zoom
Hocking App. No. 21CA7 11
accommodation, and/or filing a motion to continue the final divorce hearing.3 For
whatever reason, Husband chose to represent himself in the divorce.
{¶19} We are cognizant of the long-standing preference in Ohio courts to
afford reasonable leeway to pro se parties. See Goodman v. Goodman, 4th Dist.
Ross No. 21CA3740, 2021-Ohio-3169, at ¶ 11; see generally, State ex rel. Simpson
v. Hamilton County Court of Common Pleas (May 17, 1995), Hamilton App. No.
C-940505[,] [1995 WL 298184]. “ ‘Nevertheless, pro se litigants are ‘presumed to
have knowledge of the law and of correct legal procedure and [are to be] held to
the same standard as all other litigants.’ ” Goodman, supra, at ¶ 11, quoting Kilroy
v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171, 174 (8th Dist.
1996); see generally, State v. Wayt (Mar. 20, 1991), Tuscarawas No. 90AP070045
(“While insuring that pro se [litigants] are afforded the same protections and rights
prescribed in the * * * rules, we likewise hold them to the obligations contained
therein”). Erie Ins. Co. v. Bell, 4th Dist. Lawrence No. 01CA12, 2002-Ohio-6139,
at ¶ 28. Proceeding in the divorce matter pro se, Husband made decisions which
did not further his own interests.
3
We are permitted to take judicial notice of the Hocking County Court of Common Pleas online docket at
https://hocking.oh.gov/clerk, accessed June 7, 2022, which reflects Husband’s indictment on two counts, domestic
violence and criminal damaging, in the Hocking County Common Pleas Court. See Doczi v. Blake, 2021-Ohio-
3433, 178 N.E.3d 16, at fn. 3 (4th Dist.). Husband was indicted in Hocking County on August 7, 2020. Wife filed
the Complaint for Divorce in Hocking County on September 15, 2020. On December 7, 2020, Attorney Terry
Sherman filed a notice of appearance on behalf of Husband in the criminal matter. The docket reflects Attorney
Sherman continued to represent Husband when Husband entered a plea on May 12, 2021, well after the March 22,
2021 final divorce hearing.
Hocking App. No. 21CA7 12
{¶20} Husband’s affidavit avers that he did not receive the various orders of
the magistrate and the court, only court notices. However, the Magistrate’s Order
of October 15, 2020 indicates that Husband sent the court office and opposing
counsel a handwritten motion for extension of time and a request for court-
appointed counsel. The docket also reflects that Husband filed handwritten
pleadings on February 26, 2021, which included a Motion to Contest Divorce;
Motion to be Present; and Motion to Appoint Counsel. Filing these motions
indicates Husband’s full awareness of the proceedings and undermines the
credibility of his affidavit indicating that he did not receive the court’s orders and
inferring that due to a lack of knowledge of the proceedings or the court’s orders,
he did not file appropriate responsive pleadings or documents.
{¶21} While the trial court denied Husband’s motions and ordered that the
final divorce hearing would proceed on March 22, 2021, the trial court did attempt
to accommodate Husband’s request to be present. The trial court stated that if
Husband could make arrangements with the jail to appear by Zoom or other
videoconferencing, the court would permit Husband to participate in the final
divorce hearing. Husband’s credibility is further damaged by his averment in
Paragraph 18 of his affidavit that “the jail would not cooperate by allowing me to
participate by Zoom,” while simultaneously asserting that he did not receive the
order allowing him to attend the final divorce hearing by Zoom. Which scenario is
Hocking App. No. 21CA7 13
correct? Husband has only himself to blame for his absence at the final divorce
hearing.4
{¶22} Based on the foregoing, we find no merit to Husband’s argument
herein. We find the trial court did not abuse its discretion with regard to its rulings
on Husband’s motion to be physically present at the final divorce hearing.
Husband chose to proceed pro se throughout the proceedings and his actions (or
inactions) were to his detriment. Even so, the trial court attempted to
accommodate Husband’s request to attend the final divorce hearing. Any lack of
meaningful participation throughout the proceedings is Husband’s fault.
Accordingly, the third assignment of error is hereby overruled.
B. ASSIGNMENTS OF ERROR ONE AND TWO
1. Standard of Review
{¶23} “Appellate courts generally review ‘the propriety of a trial court's
determination in a domestic relations case’ under the ‘abuse of discretion’
standard.” Wilburn v. Ferguson, 4th Dist. Lawrence No. 21CA4, 2021-Ohio-4256,
at ¶ 18, quoting Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989)
(abuse of discretion standard applies to child support, custody, visitation, spousal
support, and division of marital property). Because Husband’s arguments
4
Notably, Husband did not attach to his affidavit supporting documents which he could have presented as evidence
at the final divorce hearing of his income, ownership of his own separate personal property, or his entitlement to
shared parenting.
Hocking App. No. 21CA7 14
contained in the first and second assignments of error are related and are governed
by the abuse of discretion standard of review, we consider them jointly.
2. Legal Analysis
{¶24} Under the first assignment of error, Husband argues that the trial court
erred by failing to divide the property equitably. Pursuant to R.C. 3105.171(F), a
trial court shall consider the following factors in order to ensure an equitable
division of the parties’ marital property:
(1) The duration of the marriage;
(2) The assets and liabilities of the spouses;
(3) The desirability of awarding the family home, or the right to reside in
the family home for reasonable periods of time, to the spouse with custody
of the children of the marriage;
(4) The liquidity of the property to be distributed;
(5) The economic desirability of retaining intact an asset or an interest in
an asset;
(6) The tax consequences of the property division upon the respective
awards to be made to each spouse;
(7) The costs of sale, if it is necessary that an asset be sold to effectuate an
equitable distribution of property;
(8) Any division or disbursement of property made in a separation
agreement that was voluntarily entered into by the spouses;
(9) Any retirement benefits of the spouses, excluding the social security
benefits of a spouse except as may be relevant for purposes of dividing a
public pension;
Hocking App. No. 21CA7 15
(10) Any other factor that the court expressly finds to be relevant and
equitable.
{¶25} We also recognize that although trial courts possess broad discretion
to divide marital property, the Ohio Revised Code requires trial courts to divide
marital and separate property equitably between the parties. R.C. 3105.171(B); see
Jenkins, supra, at ¶ 33. In most cases, this requires the court to divide the marital
property equally. R.C. 3105.171(C)(1). If, however, an equal division would
produce an inequitable result, the court must divide the property equitably.
Jenkins, supra, at ¶ 34.
{¶26} Furthermore, when an appellate court reviews a trial court's property
division, the appellate court must not consider any items in isolation, but rather,
must consider the property division as a whole. See Jenkins v. Jenkins, 4th Dist.
Highland No. 19CA19, 2021-Ohio-153 at ¶ 35; Briganti v. Briganti, 9 Ohio St.3d
at 222, 459 N.E.2d 896 (1984); accord Sinkovitz v. Sinkovitz, 4th Dist. Hocking
No. 15CA18, 2016-Ohio-2861, ¶ 35. “The appropriate consideration is whether
the trial court's disposition of these items resulted in a property division, which,
viewed in its entirety, was an abuse of discretion.” Briganti, 9 Ohio St.3d at 222.
{¶27} Under the first assignment of error, Husband contends that (1) the
trial court failed to determine the value of the marital home and whether the
marital home is separate or marital property; (2) the trial court did not make other
designations as to separate or marital property; (3) did not determine the value of
Hocking App. No. 21CA7 16
the various motor vehicles the parties owned; (4) did not address “past due debt;”
and (5) did not place values on various items of untitled personal property or
American Tar N Chip, LLC. We find no merit to these contentions. In a divorce
case, as in any other case, it is the responsibility of the parties to put forth the
evidence they believe is relevant and necessary for a just decision. Each party tries
his own case, and the court reaches a decision based on the evidence that the
parties have presented. See Walls v. Walls, 4th Dist. Highland No. 94CA849, 1995
WL 34788, at *5.
{¶28} Furthermore, in Roberts v. Roberts, 10th Dist. Franklin No. 08AP-27,
2008-Ohio-6121, the Tenth District Court of Appeals held:
[I]f a party fails to present sufficient evidence of valuation, that
party has presumptively waived the right to appeal the
distribution of those assets because the trial court can only make
decisions based on the evidence presented[.]” Id. at ¶ 22, citing
Hruby v. Hruby (June 11, 1997), Columbiana App. No. 93-C-9.
“[W]hen a party fails to present evidence as to the value of an
item, it is akin to invited error and the party has waived the right
to appeal in regard to that asset.
{¶29} Roberts, supra at ¶ 22. See also Kautz v. Kautz, 5th Dist. Stark
No. 2011CA34, 2011-Ohio-6547, at ¶¶ 15-16. Because Husband did not file
an affidavit delineating the items he now contests as items of separate or
marital property and place his own valuations on the items, or present other
evidence of value, he has waived his right to contest the trial court’s
distribution of the marital home, the vehicles, and various items of untitled
Hocking App. No. 21CA7 17
personal property. Based on the foregoing, we find no need to consider
Husband’s first assignment of error. Accordingly, it is hereby overruled.
{¶30} Under the second assignment of error, Husband challenges the court’s
determination as to child support. He asserts that Wife did not produce
documentation of income and argues that the trial court erred by arbitrarily
imputing income to him without consideration of relevant factors set forth in Rock
V. Cabral, 67 Ohio St. 3d 108, 110-111, 616 N.E.2d 218 (1993).5 Husband asks
this court to remand the matter for an appropriate determination of his child
support obligation. The application of the “abuse of discretion” standard in
custody and support cases is also warranted because trial courts have wide latitude
in considering the evidence and assessing the parties’ demeanor, attitude, and
credibility. See Massie v. Simmons, 4th Dist. Scioto No. 14CA3630, 2014-Ohio-
5835, ¶ 18, citing Davis v. Flickinger, 77 Ohio St.3d 415, 418-419, 674 N.E.2d
1159 (1997).
{¶31} R.C. 3119.022 governs the procedure for awarding and calculating
child support. The statute's overriding concern is to ensure the best interest of the
child for whom support is being awarded. See Cummin v. Cummin, 2015-Ohio-
5482, 55 N.E. 3d 467, (4th Dist.), at 1; Rock v. Cabral, 67 Ohio St. 3d 108, 110.
5
In the Supreme Court’s decision in Rock v. Cabral, 67 Ohio St. 3d, 108, 111, the court set forth these factors:
employment potential and probable earnings based on recent work history; job qualifications; prevailing job
opportunities; and salary levels in the community.
Hocking App. No. 21CA7 18
Thus, the statute's provisions are mandatory in nature and courts must follow the
statute literally and technically in all material aspects. Marker v. Grimm, 65 Ohio
St.3d 139, 601 N.E.2d 496, paragraph two of the syllabus (1992); see also Albright
v. Albright, 4th Dist. Lawrence No. 06CA35, 2007-Ohio-3709, at ¶ 7. If a trial
court makes the proper calculations on the applicable worksheet, the amount
shown is “rebuttably presumed” to be the correct amount of child support due. See
Rock at 110, 616 N.E.2d 218; Albright; see also R.C. 3119.03.
{¶32} “ ‘In calculating child support, a trial court must determine the annual
income of each of parent.’ ” Cummin, supra, at ¶19, quoting McLaughlin v.
Kessler, 12th Dist. Fayette No. CA2011-09-021, 2012-Ohio-3317, at ¶ 13. For an
unemployed or underemployed parent, income is the “sum of the gross income of
the parent and any potential income of the parent.” Id.; R.C. 3119.01(C)(5)(b).
Husband concedes that he was voluntarily underemployed throughout the divorce
proceedings.
{¶33} Ohio courts have held that if a parent is evasive or avoidant in
providing income verification, a court may use the financial data that is available
to determine the parent's gross income, even if the parent is not voluntarily
unemployed or underemployed. See Massey v. Lambert, 7th Dist. Columbiana No.
09CO29, 2011-Ohio-1341; Cole v. Cole, 5th Dist. No.2006-CA-00190, 2007-
Ohio-54; and Bach v. Bach (Sept. 10, 1999), 2d Dist. No. 17497. In Cole, the Fifth
Hocking App. No. 21CA7 19
District concluded that since the father “testified evasively” and “attended trial
with little or no information regarding his finances,” the trial court properly relied
on the past income information to determine his support obligations. Id. at ¶ 22-
23. In Bach, the Second District held that the trial court did not abuse its discretion
by estimating the father's income based on other information in the record where
the father was evasive, forgetful, kept poor business records and the trial court was
therefore skeptical about his credibility. Bach v. Bach, 2d Dist. Montgomery No.
17497, 199 WL919935, (September 10, 1999). Massey was also evasive regarding
his income and failed to provide verification of his income as ordered by the court.
The appellate court, affirming, concluded that the trial court was reasonable in
calculating Massey’s gross income using the limited information before it. Id. at ¶
61.
{¶34} At the final divorce hearing, Wife testified to the best of her
knowledge Husband was the sole owner of American Tar N Chip, LLC, and her
“guestimate” for the 2019 tax year was $60,000.00. She also testified she waived
her right to two vehicles/equipment associated with American Tar N Chip, LLC.
The information Wife testified to regarding American Tar N Chip, LLC, was also
set forth in Wife’s Affidavit attached to her motion for temporary orders filed the
same day as the complaint for divorce. At no time during the proceedings did
husband choose to provide verification of income regarding American Tar N Chip,
Hocking App. No. 21CA7 20
LLC. The lack of information in the record is his fault. As in Massey, we find the
trial court relied on limited information before it and did not abuse its discretion.
{¶35} We find no merit to the second assignment of error. Accordingly, it is
hereby overruled.
C. ASSIGNMENT OF ERROR FOUR
1. Standard of Review
{¶36} Civil Rule 60(B) provides in pertinent part that, “On motion and upon
such terms as are just, the court may relieve a party or his legal representative from
a final judgment, order, or proceedings for the following reasons: (mistake,
inadvertence, surprise, or excusable neglect… or (5) any other reason justifying
relief from judgment.” “ ‘The decision to grant or deny a Civ.R. 60(B) motion lies
within the trial court's discretion, and the decision will be reversed only for an
abuse of discretion.’ ” Byers v. Dearth, 4th Dist. Ross No. 09CA3117, 2010-Ohio-
1988, at ¶ 8, quoting Sain v. Roo, 10th Dist. Franklin No. 02AP-448, 2003-Ohio-
626, at ¶ 11, citing Oberkonz v. Gosha, 10th Dist. Franklin No. 02AP-237, 2002-
Ohio-5572, at ¶ 12. Furthermore, a trial court possesses discretion when
determining whether to hold a hearing regarding a Civ.R. 60(B) motion. See Detty
v. Yates, 4th Dist. Ross No. 13CA3390, 2014-Ohio-1935, at ¶ 20; Kay v. Marc
Glassman, Inc., 76 Ohio St.3d 18, 19, 665 N.E.2d 1102 (1996). Thus, an appellate
Hocking App. No. 21CA7 21
court will not reverse a trial court's decision regarding a Civ.R. 60(B) evidentiary
hearing absent an abuse of discretion. Id.
2. Legal Analysis
{¶37} Husband asserts that the trial court erred by denying his motion to
vacate judgment pursuant to Civ. Rule 60(B) without first conducting an oral
hearing. He characterizes facts “sufficient to justify relief” as: his continuous
incarceration during the pendency of the case; that he received only court notices
but was not served with the pleadings; and that his request to arrange a Zoom
appearance at the final hearing was ignored by the jail staff. Husband contends
that just because he was incarcerated does not also mean he was not entitled to a
fair division of property. Husband apparently characterizes his incarceration and
inability to attend the court hearings as constituting “excusable neglect” or some
“other reason justifying relief.” For the reasons which follow, we disagree.
{¶38} A party moving for relief from judgment under Civ.R. 60(B) bears the
burden to show that he or she is entitled to a hearing on the motion. See Matter of
L.S. 4th Dist. Ross No. 20CA3719, 2020-Ohio- 5516, at 4; PHH Mtge. Corp. v.
Northrup, 4th Dist. Pickaway No. 11CA6, 2011-Ohio-6814, ¶ 28. Struckman v.
Bd. of Edn. of Teays Valley Local School Dist., 2019-Ohio-115, 128 N.E.3d 709,
¶ 20 (4th Dist.). If the motion “ ‘contains allegations of operative facts which
would warrant relief under Civil Rule 60(B), the trial court should grant a hearing
Hocking App. No. 21CA7 22
to take evidence and verify these facts before it rules on the motion.’ ” Coulson v.
Coulson, 5 Ohio St.3d 12, 16, 448 N.E.2d 809 (1983), quoting Adomeit v.
Baltimore, 39 Ohio App.2d 97, 105, 316 N.E.2d 469 (8th Dist.1974). In
Struckman, we explained:
To be entitled to a hearing, a movant must present operative
facts to show all three of the following circumstances: (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 stated in Civ.R. 60(B)(1) through (5); and (3) the
motion is made within a reasonable time, and, where the
grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than
one year after the judgment, order or proceeding was entered
or taken.
Id., at ¶ 21, quoting GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio
St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. Husband’s
motion fulfilled the requirement that it be filed within one year.
{¶39} Wife responds that Husband did not demonstrate entitlement to a
hearing on his Civ.R. 60(B) motion simply due to his incarceration. While
Husband alleges that he did not receive pleadings while he was incarcerated, Wife
again argues that these allegations are not credible. As set forth in detail above,
Husband averred that “[t]he only court paperwork that I received while
incarcerated, other than the initial divorce documents, were several blue court
notices.” We agree, as discussed above, that Husband’s affidavit is lacking in
credibility.
Hocking App. No. 21CA7 23
{¶40} Even if we did find his affidavit credible, Husband has not satisfied
the additional requirements for relief from judgment. Husband has not shown
excusable neglect or any other reason justifying relief. In Cincinnati Ins. Co. v.
Schaub, 2d Dist. Montgomery No. 22419, 2008-Ohio-4729, Schaub was convicted
of arson. While incarcerated, a civil lawsuit was filed alleging that Schaub had
negligently or recklessly set a fire to a residence. Eventually, judgment against
Schaub was granted. Schaub filed a motion for relief from judgment under Civ.R.
60(B)(1). The appellate court noted that the only evidence submitted in support of
Schaub’s motion for relief from judgment was his own affidavit in which he stated
that he was imprisoned, that he did not have a guardian ad litem appointed to aid in
his defense, and that he was not aware during the lawsuit of a possibility of being
provided an attorney from any source, including his insurance company. The
Schaub court observed that “ ‘inexperience with legal matters’ ” is not excusable
neglect. Id., supra at ¶ 41, quoting Boling v. DiMeche & Vlado, Inc., 10th Dist.
Franklin No. 07AP-146, 2007-Ohio–5795, at ¶ 15 (citations omitted).
{¶41} Husband also did not present a meritorious defense or claim. “A
meritorious defense is one which, if proved, would entitle a party to the relief
requested.” Williamson v. Saranda Consol. Ltd. Partnership (Dec. 14, 1989),
Montgomery App. No. 11507, 1989 WL 150791, *4. Despite this requirement,
while Husband claimed in his handwritten Motion to Contest Divorce that he had
Hocking App. No. 21CA7 24
legitimate disputes regarding allocation of property rights and custody issues,
Husband did not set forth his claim in his affidavit in support of the Civ.R. 60(B)
motion. He did not aver that he had a meritorious defense to present if the divorce
decree were set aside. A meritorious defense to the allegations contained in Wife’s
complaint would have required Husband to support his responses with
documentation. Husband relied solely upon his incarceration and this is not a
defense.
“The allegation of operative facts required in order to prevail
upon a motion for relief from judgment pursuant to Civ. R. 60(B)
must be of such evidentiary quality as affidavits, depositions,
answers to interrogatories, written admissions, written
stipulations, or other sworn testimony. Unsworn allegations of
operative facts contained in a motion for relief from judgment
filed under Civ.R. 60(B) or in a brief attached to the motion are
not sufficient evidence upon which to grant a motion to vacate
judgment.”
Schaub, supra, at ¶ 48, quoting East Ohio Gas Co. v. Walker (1978), 59 Ohio
App.2d 216, 394 N.E.2d 348. See also Gill v. Grafton Correctional Institution,
Franklin App. No. 04AP-1353, 2005-Ohio-3097, at ¶ 11 (rejecting relief from
judgment due to lack of appropriate evidence).
{¶42} Husband’s affidavit contains no facts about a potential defense and
did not satisfy the requirement of establishing that he had a meritorious defense to
the divorce action. Because the motion failed to satisfy all three requirements for
setting a judgment aside under Civ. R. 60(B), the trial court did not abuse its
Hocking App. No. 21CA7 25
discretion in overruling the motion for relief from judgment. Husband’s fourth
assignment of error is hereby overruled.
D. ASSIGNMENT OF ERROR FIVE
1. Standard of Review
{¶43} Relevant herein, Crim.R. 59(A), Grounds for New Trial, provides
that:
A new trial may be granted to all or any of the parties and on
all or part of the issues upon any of the following grounds:
(1) Irregularity in the proceedings of the court, jury,
magistrate, or prevailing party, or any order of the court or
magistrate, or abuse of discretion, by which an aggrieved
party was prevented from having a fair trial; * * * (8) Newly
discovered evidence, material for the party applying, which
with reasonable diligence he could not have discovered and
produced at trial * * *.
{¶44} Orders denying or granting motions for new trial under Civ.R.
59(A)(1) are reviewed under abuse of discretion standard. See Simon v. Aulino,
2020-Ohio-6962, 165 N.E.3d 706 (4th Dist.), at ¶ 85; Lewis v. Nease, 4th Dist.
Scioto No. 05CA3025, 2006-Ohio-4362, at ¶ 73. “ ‘A trial court's decision
denying a new trial pursuant to Civ.R. 59(A)(8) will not be disturbed, absent an
abuse of discretion.’ ” Lawless v. Board of Education of Lawrence County
Educational Service Center, 2020-Ohio-117, 141 N.E.3d 267 (4th Dist.), at ¶ 68,
quoting Gregory v. Kottman-Gregory, 12th Dist. Madison Nos. CA2004-11-039,
2005-Ohio-6558, at ¶ 25.
Hocking App. No. 21CA7 26
2. Legal Analysis
{¶45} Husband asserts the trial court erred by denying his motion for new
trial pursuant to Civ.R. 59(A). Husband argues that the identical grounds as set
forth above, i.e. the alleged improper property division, miscalculation of child
support, and his inability to participate meaningfully in the proceedings all justify a
reversal of the judgment and the grant of a new trial. Wife responds to this
assignment of error by arguing that Husband’s incarceration, refusal to fully
participate, and claims of failed service are not “irregularities” in the proceeding as
required by the rule. Furthermore, Wife points out that Husband has not presented
any newly discovered evidence warranting a new trial. For the reasons which
follow, we agree with Wife.
{¶46} “An ‘irregularity’ that would justify a new trial under Civ.R. 59(A)(1)
must be ‘a departure from the due, orderly and established mode of proceeding
therein, where a party, with no fault on [her] part, has been deprived of some right
or benefit otherwise available to [her].’ ” Simon v. Simon, 9th Dist. Summit No.
26767, 2014-Ohio-1390, at ¶ 22 (Where Mother did not provide the court with
doctor’s “orders” that she could not attend trial, the appellate court found Mother
did not demonstrate an “irregularity” in the proceeding and consequently, no abuse
of discretion by denying Mother’s motion for new trial), quoting Meyer v.
Srivastava, 141 Ohio App.3d 662, 667 (2d Dist.2001). For purposes of Civ.R.
Hocking App. No. 21CA7 27
59(A)(8), the phrase “newly discovered evidence” “refers to evidence of facts in
existence at the time of trial of which the aggrieved party was excusably ignorant.”
(Emphasis added.) Lawless v. Bd. of Educ. Serv. Ctr., 2020-Ohio-117, 141 NE 3d
267, at ¶ 69 (4th).
{¶47} Here, we find Husband’s incarceration was entirely his own fault.
Furthermore, Husband’s failure to present evidence at the final divorce hearing,
though aware of the divorce complaint and the court notices, according to him, was
also his own fault. Husband’s incarceration does not constitute an irregularity.
And Husband’s affidavit did not claim newly discovered evidence. Based on the
foregoing, we find no merit to Appellant’s arguments contained within the final
assignment of error. Accordingly, it is hereby overruled. The judgment of the trial
court is affirmed.
{¶48} Having found no merit to any of Appellant’s assignments of error, the
judgment of the trial court is hereby affirmed.
JUDGMENT AFFIRMED.
Hocking App. No. 21CA7 28
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Hocking County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
Hess, J. and Wilkin, J. concur in Judgment and Opinion.
For the Court,
__________________________________
Jason P. Smith
Presiding 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.