J.N. v. L.A. ( 2022 )

[Cite as J.N. v. L.A., 2022-Ohio-974.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
J.N. : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 21-COA-014
:
L.A. :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County Court
of Common Pleas, Juvenile Division,
Case No. 20204016
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: March 24, 2022
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
NO APPEARANCE THOMAS L. ERB, JR.
803 E. Washington St., Suite 185
Medina, OH 44256
[Cite as J.N. v. L.A., 2022-Ohio-974.]
Delaney, J.
{¶1} Defendant-Appellant L.A. appeals the June 28, 2021 judgment entry of the
Ashland County Court of Common Pleas, Juvenile Division.
FACTS AND PROCEDURAL HISTORY
Father’s Complaint to Determine Parentage
{¶2} On February 21, 2020, Plaintiff-Appellee J.N. (“Father”) filed a Complaint to
Determine Parentage and Establishing Parenting Time Order with the Ashland County
Court of Common Pleas, Juvenile Division. In his complaint, Father alleged he was the
biological father of A.M.N. (“Child”), whose biological mother was Defendant-Appellant
L.A. (“Mother”). Father requested a judgment entry documenting the existence of a
parent-child relationship between Father and Child and an order establishing parenting
time. Mother and Child had previously resided in Florida, but recently moved to Ohio. The
trial court set the matter for a hearing on March 9, 2020 for a determination of paternity.
A second hearing was set for May 11, 2020 to determine and rule on the complaint for
parentage.
{¶3} The magistrate’s order issued after the hearing found that Father did not
dispute parentage and was listed on Child’s birth certificate. Mother, however, disputed
paternity and wanted paternity testing. The magistrate ordered genetic testing.
{¶4} Genetic testing was completed, and Father was determined to be the
biological parent of Child.
{¶5} On September 30, 2020, Mother filed a Notice of Substitution. The motion
listed her new attorneys as Thomas L. Erb, Jr. and Michael Callow.
[Cite as J.N. v. L.A., 2022-Ohio-974.]
October 2, 2020 Hearing
{¶6} The parties appeared for a video hearing on October 2, 2020 to determine
parentage and to establish a Parenting Time Order. Attorney Callow represented Mother
at the hearing. Counsel for Father stated that Mother and Father were close to an
agreement that would resolve the necessity of the hearing. (T. 3). The trial court took a
recess to allow the parties to discuss a settlement and when the parties returned to the
hearing, they had come to an agreement that resolved all the issues pending before the
trial court. (T. 7). The parties agreed that paternity was established, Mother would remain
the residential parent and legal custodian of Child, and the parents would have visitation
based on the standard parenting time order (with some modification). (T. 9-10).
{¶7} Because of the late nature of the agreement, the parties did not have
anything in writing to submit to the trial court. (T. 7). Counsel for Father volunteered to
draft an agreed judgment entry and send it to Attorney Callow for his signature within
seven days of the hearing. (T. 7, 14). The trial court stated:
So I am going to give you, you said a week, I don’t doubt that you can get
that done in a week, and I also know things come up, so I am going to mark
our calendar for 15 days, and if I don’t have it within 15 days, somebody will
be giving you a call.
(T. 15).
Dismissal of Complaint for Parentage and Parenting Time
{¶8} On December 3, 2020, the trial court issued a judgment entry dismissing
Father’s complaint for parentage without prejudice. The order stated:
[Cite as J.N. v. L.A., 2022-Ohio-974.]
This case came before the Court for a hearing on October 2, 2020. The
parties and counsel were present. The Court was advised that the parties
had reached a settlement on all issues. An agreed judgment entry was to
be submitted to the Court within fifteen (15) days. As of November 30, 2020,
no judgment entry has been submitted. Therefore, it is ORDERED this case
is Dismissed without prejudice.
(Judgment Entry, December 3, 2020).
Motion for Relief from Judgment
{¶9} On March 5, 2021, Father filed a motion for relief from the December 3,
2020 judgment entry dismissing his complaint for parentage. He relied upon Civ.R.
60(B)(5) to argue that he was entitled to relief because he complied with the trial court’s
instructions as to the agreed judgment entry. He stated that on October 8, 2020, he
emailed a copy of the agreed judgment entry to Attorney Callow. After receiving no
response from Attorney Callow, Father’s counsel sent a follow-up email to Attorney
Callow on October 27, 2020. Counsel for Father did not receive any response to his email.
Father attached the proposed agreed judgment entry to the motion for relief.
{¶10} Mother responded to Father’s motion for relief from judgment. She argued
that Father failed to comply with the trial court’s instruction that the agreed judgment entry
was to be filed within 15 days of the October 2, 2020 hearing. Upon Attorney Callow’s
alleged failure to respond to counsel’s emails, Father did not avail himself to any other
methods of communication or remedies, such as filing a motion to enforce with the trial
court, to comply with the trial court’s instructions as to the filing of the agreed judgment
[Cite as J.N. v. L.A., 2022-Ohio-974.]
entry. Father also could have filed an appeal of the trial court’s dismissal entry, rather
than an untimely motion for relief from judgment.
{¶11} In conjunction with her response to the motion for relief from judgment,
Mother filed an Alternative Motion for Temporary Orders and Alternative Motion to Modify.
Mother and Child had moved back to Florida after the trial court dismissed the parentage
action on December 3, 2020. Child was enrolled in middle school. Mother requested that
if the trial court granted Father’s motion for relief from judgment, the trial court should
modify the current Shared Parenting Plan so that Mother was the residential parent and
primary legal custodian and allow Mother and Child to remain in Florida.
{¶12} On May 25, 2021, the trial court held a hearing on Father’s motion for relief
from judgment. Counsel for Father argued there was no order stating the agreed judgment
entry was to be filed within 15 days of the October 2, 2020 hearing and because a trial
court only speaks through its orders, Father was not required to file the agreed judgment
entry. (T. 24). Father could not be held to a deadline that was never set by the trial court.
(T. 25). Counsel stated he did not regularly practice in the Ashland County Court of
Common Pleas, Juvenile Division, but where he usually practiced, he expected the trial
court to set the matter for a contempt hearing to establish why the agreed judgment
entry had not been filed prior to dismissal. (T. 19). He did not receive any notice or
communication from the trial court before it dismissed the complaint. (T. 19). Counsel for
Father stated he contacted Attorney Callow by phone and email, but he never heard back
from him. (T. 20). Father contended Mother should not benefit from not cooperating with
the agreement reached on October 2, 2020. (T. 20).
[Cite as J.N. v. L.A., 2022-Ohio-974.]
{¶13} Counsel for Mother argued that Father was not in compliance with the
Ashland County Local Rules when he failed to notify the trial court that Mother was not
cooperating with the agreement. (T. 21). Father’s compliance with the Local Rules would
have prevented the trial court’s dismissal of the complaint. (T. 22). Even after the
dismissal of the complaint on December 3, 2020, Father delayed until March 5, 2021 to
file a motion for relief from judgment. (T. 22). Father also missed the deadline to file a
timely appeal of the December 3, 2020 judgment entry. (T. 23). In reliance on the trial
court’s dismissal of the complaint and the Father’s failure to file a timely motion for relief
from judgment, Mother and Child relocated to Florida. (T. 23).
Judgment Entry
{¶14} On June 28, 2021, the trial court issued its judgment entry granting Father’s
motion for relief from judgment. It found that at the October 2, 2020 hearing, the trial court
directed Father to prepare and submit an agreed judgment entry to the trial court within
15 days. The 15-day limit was not journalized as a court order. The trial court further found
that Father prepared the agreed judgment entry that accurately set forth the parties’
agreement and submitted it to counsel for Mother, but Mother’s counsel never responded.
Because Father submitted the agreed judgment entry to Mother’s counsel and there was
no response, the trial court held that Father suffered a detriment from which Mother
benefitted. While Father could have taken other action, the trial court found his failure to
take different action did not prohibit the relief requested under Civ.R. 60(B)(5).
{¶15} The trial court vacated the December 3, 2020 judgment entry and adopted
the agreed judgment entry, naming Mother as the residential parent and legal custodian
of Child.
[Cite as J.N. v. L.A., 2022-Ohio-974.]
{¶16} It is from this judgment entry that Mother now appeals. Father did not file
an appellee’s brief. Pursuant to App.R. 18(C), “[i]f an appellee fails to file the appellee's
brief within the time provided by this rule, or within the time as extended, * * * in
determining the appeal, the court may accept the appellant's statement of the facts and
issues as correct and reverse the judgment if appellant's brief reasonably appears to
sustain such action.”
ASSIGNMENT OF ERROR
{¶17} Mother raises one Assignment of Error:
{¶18} “THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING
APPELLEE’S MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO OHIO RULE
OF CIVIL PROCEDURE 60(B) BECAUSE THE APPELLEE IS NOT ENTITLED TO
RELIEF AND FAILED TO FILE THE MOTION WITHIN A REASONABLE TIME.”
ANALYSIS
{¶19} Mother argues the trial court abused its discretion when it granted Father’s
motion for relief from judgment. For the reasons stated below, we agree.
GTE Automatic Factors
{¶20} A motion for relief from judgment under Civ.R. 60(B) lies in the trial court's
sound discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 514 N.E.2d 1122 (1987). To find an
abuse of that discretion, we must determine the trial court's decision was unreasonable,
arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). In GTE Automatic Electric Inc. v.
ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the
syllabus, the Supreme Court of Ohio held the following:
[Cite as J.N. v. L.A., 2022-Ohio-974.]
To prevail on a motion brought 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
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.
{¶21} We note the trial court did not refer to the GTE Automatic factors in its June
28, 2021 judgment entry granting Father’s motion for relief from judgment. The trial court
found that Father was entitled to relief pursuant to Civ.R. 60(B)(5), but there was no
analysis as to whether the motion was made in a reasonable time or whether Father had
a meritorious defense. In her brief, Mother states that whether Father has a meritorious
defense or claim to present is not relevant because this case involves parentage and
there is an underlying agreed judgment entry. We agree and as such, we will consider
the remaining factors under the GTE Automatic determination. The GTE Automatic
factors are “independent and in the conjunctive, not the disjunctive.” DeChellis v. Estate
of DeChellis, 5th Dist. Stark No. 2020CA00025, 2020-Ohio-5111, 2020 WL 6375476, ¶
16 quoting Blaney v. Kerrigan, 5th Dist. Fairfield No. 12-CA-86, 1986 WL 8646, *2 (Aug.
4, 1986) quoting GTE Automatic Elec., Inc., supra at 150-151. “Failing to meet one is
fatal, for all three must be satisfied in order to gain relief * * *.” Id.
Civ.R. 60(B)(5)
{¶22} Father argued he was entitled to relief from the trial court’s December 3,
2020 judgment entry pursuant to Civ.R. 60(B)(5). Civ.R. 60(B)(5) allows the trial court to
[Cite as J.N. v. L.A., 2022-Ohio-974.]
relieve a party from a final judgment for “any other reason justifying relief from the
judgment.” Civ.R. 60(B)(5) operates as a catch-all provision and “reflects ‘the inherent
power of a court to relieve a person from the unjust operation of a judgment.’” Maggiore
v. Barensfeld, 5th Dist. Stark No. 2011CA00180, 2012-Ohio-2909, 2012 WL 2415184, ¶
35 citing Dutton v. Potroos, 5th Dist. Stark No. 2010CA00318, 2011-Ohio-3646, 2011 WL
3057612, at ¶ 49. It is reserved for “extraordinary and unusual case[s],” Myers v. Myers,
9th Dist. Summit No. 22393, 2005-Ohio-3800, 2005 WL 1763608, at ¶ 14, and “is not a
substitute for the enumerated grounds for relief from judgment [.]” Id. It applies only where
a more specific provision of Civ.R. 60(B) does not apply. Ogline v. Sam's Drug Mart,
L.L.C., 5th Dist. Stark No. 2013 CA 00154, 2014-Ohio-2355, 2014 WL 2547765, ¶ 38
citing Strack v. Pelton, 70 Ohio St.3d 172, 637 N.E.2d 914 (1997).
{¶23} Mother contends this is not an extraordinary or unusual case in which there
are substantial grounds to relieve a party of the unjust operation of a judgment. The trial
court laid the dismissal of the action on the shoulders of Mother, while a close examination
of the record in this case shows that it was Father’s inaction that resulted in a procedural,
not unjust, dismissal of his complaint for parentage.
{¶24} After the parties stated they settled the matter at the October 2, 2020
hearing, counsel for Father volunteered to file the agreed judgment entry within 15 days
of the hearing. While acknowledging he volunteered to file the agreed judgment entry,
Father argued at the hearing for his motion for relief that he was not required to file the
agreed judgment entry within 15 days because the trial court did not journalize an order
to that effect. We agree with Father that it is well-established a trial court speaks only
through its journal entries. Infinite Sec. Solutions, L.L.C. v. Karam Properties II, Ltd., 143
[Cite as J.N. v. L.A., 2022-Ohio-974.]
Ohio St.3d 346, 2015-Ohio-1101, ¶ 29. Loc.R. 11(B) of the Ashland County Court of
Common Pleas, Juvenile Division, however, provides specialized guidance to its
practioners as to the preparation of an agreed judgment entry settled at a hearing. The
rule states, in pertinent part:
B. CASES SETTLED AT HEARING: If a case is settled during the course
of a hearing, counsel shall reduce the settlement agreement to writing,
place the agreement on the record, or both, as directed by the Court.
Counsel for the Plaintiff shall prepare a Judgment Entry which fully
comports with the parties' in-court agreement, and shall file the same with
the Court within thirty (30) days of notifying the Court that a disputed matter
has been resolved by agreement. * * *
Before volunteering to file the agreed judgment entry within 15 days without a journalized
entry ordering the same, Father could have brought to the trial court’s attention that its
15-day deadline conflicted with Loc.R. 11(B). The record shows that counsel for Father
prepared and emailed the agreed judgment entry to Mother’s counsel on October 8, 2020,
without the impetus of a journalized order.
{¶25} Father next contends that Mother never responded when he emailed the
agreed judgment entry to Attorney Cowell on October 8, 2020 and October 27, 2020.
Mother does not dispute that she did not respond to the emails from Father’s counsel. At
the hearing on his motion for relief, Father’s counsel stated that he expected the trial court
to guide the proceedings when the agreed judgment entry was not filed within 15 days.
Mother argues that Father had remedies available to him to compel Mother’s performance
after the October 2, 2020 hearing and her failure to respond to his emails. The trial court
[Cite as J.N. v. L.A., 2022-Ohio-974.]
acknowledged this in its judgment entry granting the motion for relief when it stated, “[t]he
Plaintiff could have taken other action * * *.” (Judgment Entry, June 28, 2021).
{¶26} First, the Loc.R. 11(B) of the Ashland County Court of Common Pleas,
Juvenile Division, provides direction if there is a challenge in filing an agreed judgment
entry:
B. CASES SETTLED AT HEARING: If a case is settled during the course
of a hearing, counsel shall reduce the settlement agreement to writing,
place the agreement on the record, or both, as directed by the Court.
Counsel for the Plaintiff shall prepare a Judgment Entry which fully
comports with the parties' in-court agreement, and shall file the same with
the Court within thirty (30) days of notifying the Court that a disputed matter
has been resolved by agreement. In the event the parties encounter
unforeseen difficulties with the timely preparation and submission of the
Judgment Entry, the parties shall promptly notify the Court of that fact, and
shall seek an extension of time in which to timely file the Judgment Entry.
(Emphasis added.)
{¶27} Assuming arguendo that pursuant to Loc.R. 11(B), Father had 30 days to
file the agreed judgment entry after the October 2, 2020 hearing, Mother had not
responded to Father’s emails by November 2, 2020. Counsel for Father stated at the
hearing that he believed it was the trial court’s duty to notify the parties that the agreed
judgment entry had not been timely filed. Loc.R. 11(B) clearly directed Father to promptly
notify the trial court of unforeseen difficulty with the timely preparation and submission of
the agreed judgment entry and to seek an extension of time in which to file the judgment
[Cite as J.N. v. L.A., 2022-Ohio-974.]
entry. There is no entry in the record showing that Father promptly notified the trial court
of his unforeseen difficulty with the timely preparation and submission of the agreed
judgment entry and sought an extension of time in which to file the judgment entry.
{¶28} Second, Father could have a filed a motion for contempt when Mother failed
to respond on October 2, 2020 and October 27, 2020. The purpose of a civil contempt
motion is to compel compliance with a court’s order. Colby v. Colby, 5th Dist. Delaware
No. 15 CAF09 0068, 2016-Ohio-2903, ¶ 49 citing Robinette v. Bryant, 4th Dist. Lawrence
No. 14CA28, 2015–Ohio–119, ¶ 47, citing Sheridan v. Hagglund, 4th Dist. Meigs No.
13CA6, 2014–Ohio–4031, ¶ 22. A motion for contempt would have timely notified the trial
court of Mother’s failure to respond and the trial court could have remedied the matter.
{¶29} The trial court’s dismissal of the complaint for parentage was not an unjust
operation of judgment, but a procedural action due to the failure to file the agreed
judgment entry as discussed at the October 2, 2020 hearing or pursuant to Loc.R. 11(B).
It is not an extraordinary or unusual case because Father can refile his action for
parentage. Father failed to utilize the Local Rules or other methods of compelling a
parties’ performance to notify the trial court of Mother’s admitted failure to respond. Father
argued it was Mother’s fault that the complaint was dismissed, but the record in this case
shows Father had a duty to proactively notify the trial court. The court cannot remedy a
problem of which it is unaware.
Reasonable Time
{¶30} Mother next contends in her appeal that Father did not meet the third
element of the GTE Automatic test that the motion for relief from judgment must be filed
[Cite as J.N. v. L.A., 2022-Ohio-974.]
within a reasonable time. The trial court made no finding as to whether the motion for
relief was timely filed in its June 28, 2021 judgment entry granting the motion.
{¶31} The Tenth District Court of Appeals explained the timeliness of the Civ.R.
60(B) motion:
With respect to the timeliness of a motion, Civ.R. 60(B) incorporates a two-
part standard. For relief under Civ.R. 60(B)(1), (2) or (3), the movant must
seek relief “within a reasonable time, and * * * not more than one year after
the judgment.” Relief under Civ.R. 60(B)(4) and (5) is not subject to the one-
year limitation, but must still be sought within a reasonable time. This court
has stated that “[j]ust because a Civ.R. 60(B) motion is filed within one year
of the underlying judgment does not mean the motion was filed within a
reasonable time.” GMAC Mtge. v. Lee, 10th Dist. No. 11AP-796, 2012-
Ohio-1157, ¶ 21, citing EMC Mtge. Corp. v. Pratt, 10th Dist. No. 07AP-214,
2007-Ohio-4669, ¶ 8, citing Adomeit v. Baltimore, 39 Ohio App.2d 97, 106
(8th Dist.1974). “The relief provided by Civ.R. 60(B) is equitable in nature,
and a party must act diligently to be entitled to it.” Id. at ¶ 23, citing Morris
v. Grubb, 2d Dist. No. 15177 (Mar. 8, 1996). “Failure to seek relief from
judgment for a substantial period of time after the movant is aware of the
grounds for relief demonstrates a lack of due diligence.” Id., citing Morris.
Yaklevich v. Dinneen, 10th Dist. Franklin No. 20AP-322, 2021-Ohio-4531, 2021 WL
6087621, ¶ 9.
{¶32} On October 2, 2020, the parties settled the matter at the hearing. Father
stated at the hearing he would file the agreed judgment within 15 days. 63 days had
[Cite as J.N. v. L.A., 2022-Ohio-974.]
passed when on December 3, 2020, the trial court dismissed the complaint for parentage
for failure to file the agreed judgment entry. Father filed his motion for relief from judgment
on March 5, 2021, 93 days after the December 3, 2020 dismissal of the complaint. During
the 93 days, Mother and Child relocated to Florida where Child enrolled in school.
{¶33} Counsel for Father explained at the May 25, 2021 hearing that after he
received the dismissal, he attempted to contact Attorney Callow and received no
response. (T. 20). Counsel then made arrangements with the trial court to get the
transcript of the October 2, 2020 hearing. (T. 20). Instead of appealing the dismissal,
counsel stated, “from my client’s perspective, we’re trying to limit the legal expenses at
this point between this litigation in Florida and we thought that would be a better approach
as opposed to trying to appeal this decision.” (T. 20).
{¶34} “Civ.R. 60(B) exists to resolve injustices that are so great that they demand
a departure from the strict constraints of res judicata. * * * However, the rule does not
exist to allow a party to obtain relief from his or her own choice to forgo an appeal from
an adverse decision.” Hazelwood Assn., Inc. v. Helfrich, 5th Dist. Licking No. 2021 CA
00033, 2022-Ohio-174, 2022 WL 203032, ¶ 11 quoting Bank of Am., N.A. v. Kuchta, 141
Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 15. See also Doe v. Trumbull Cty.
Children Servs. Bd., 28 Ohio St.3d 128, 502 N.E.2d 605 (1986), paragraph two of the
syllabus (“[a] party may not use a Civ.R. 60(B) motion as a substitute for a timely appeal”).
{¶35} Civ.R. 60(B) does not exist to protect a party from their decision to not file
an appeal. Father admittedly filed the motion for relief from judgment as a substitute for
an appeal. Further, the relief provided by Civ.R. 60(B) is equitable in nature, and a party
must act diligently to be entitled to it. Father filed the motion for relief 93 days after the
[Cite as J.N. v. L.A., 2022-Ohio-974.]
dismissal, which was 63 days after his time for appeal had expired. While Father was
waiting on a transcript, he could have filed his motion for relief from judgment after the
dismissal and supplemented the motion with the transcript. The trial court in this case
abused its discretion when it failed to consider whether Father filed his motion for relief
from judgment within a reasonable time and considered only the issue of Civ.R. 60(B)(5).
{¶36} Under these factual and procedural circumstances, we find the trial court
abused its discretion when it determined that Father was entitled to relief from judgment
without full consideration of the GTE Automatic factors. As Father did not file an appellee’s
brief, we accept the Mother’s statement of the facts and issues as correct and reverse the
judgment because Mother’s brief reasonably appears to sustain such action. App.R.
18(C).
{¶37} Mother’s sole Assignment of Error is sustained.
[Cite as J.N. v. L.A., 2022-Ohio-974.]
CONCLUSION
{¶38} The judgment of the Ashland County Court of Common Pleas, Juvenile
Division is reversed, and the matter remanded for further proceedings consistent with this
Opinion and law.
By: Delaney, J.,
Gwin, P.J. and
Baldwin, J., concur.