Monaco v. Monaco , 2023 Ohio 1869 ( 2023 )


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  • [Cite as Monaco v. Monaco, 
    2023-Ohio-1869
    .]
    COURT OF APPEALS
    TUSCARAWAS COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    JUDGES:
    MARANDA MONACO                                :       Hon. W. Scott Gwin, P.J.
    :       Hon. William B. Hoffman, J.
    Plaintiff-Appellee    :       Hon. John W. Wise, J.
    :
    -vs-                                          :
    :       Case No. 2023 AP 01 0001
    JASON MONACO                                  :
    :
    Defendant-Appellant        :       OPINION
    CHARACTER OF PROCEEDING:                          Appeal from the Tuscarawas County Court
    of Common Pleas, General Division, Case
    No. 2021 TC 03 0089
    JUDGMENT:                                         Affirmed
    DATE OF JUDGMENT ENTRY:                           June 6, 2023
    APPEARANCES:
    For Plaintiff-Appellee                            For Defendant-Appellant
    D. COLEMAN BOND                                   JASON MONACO
    116 Cleveland Avenue N.W.                         Noble Correctional Institution E2-E34
    Suite 600                                         15709 McConnelsville Road
    Canton, OH 44702                                  Caldwell, OH 43724
    Tuscarawas County, Case No. 2023 AP 01 0001                                              2
    Gwin, P.J.
    {¶1}   Defendant-appellant Jason Monaco [“Monaco”] appeals from the December
    7, 2022 Judgment Entry of the Tuscarawas County Court of Common Pleas overruling
    his Civ.R. 60(B)(3) motion for relief from the trial court's final judgment and decree of
    divorce.
    Facts and Procedural History
    {¶2}   Maranda Monaco and Monaco were married on September 3, 2011. They
    had one child born during the marriage on January 20, 2011.
    {¶3}   On August 14, 2020, Monaco was indicted for three counts of Gross Sexual
    Imposition in violation of R.C. 2907.05, three counts of Sexual Imposition in violation of
    R.C. 2907.06, one count of Kidnapping in violation of R.C. 2905.01, one count of Rape
    in violation of R.C. 2907.02, one count of Attempted Rape in violation of R.C. 2923.02
    and 2907.02, four counts of Disseminating Matter Harmful to Juveniles in violation of
    R.C. 2907.31, and two counts of Pandering Obscenity Involving a Minor or Impaired
    Person in violation of R.C. 2907.321. See, State v. Monaco, 5th Dist. Tuscarawas No.
    2021 AP01 0002, 
    2021-Ohio-3888
    , ¶ 2.
    {¶4}   On August 25, 2020, Monaco signed a written durable general power of
    attorney appointing Maranda his attorney-in-fact to manage his affairs.
    {¶5}   On October 21, 2020, Monaco appeared with counsel to change his plea
    from not guilty on the indictment to guilty. Id. at ¶4. The trial court sentenced Monaco to
    an aggregate sentence of 15 years to life. Id. at ¶10. [Appellee’s brief at 2].
    {¶6}   On March 26, 2021, Miranda Monaco filed a petition for divorce from
    Monaco.
    Tuscarawas County, Case No. 2023 AP 01 0001                                            3
    Monaco’s Answer and affidavits
    {¶7}   In his handwritten Answer to the divorce complaint filed April 19, 2021,
    Monaco told the court that he had given his wife all of his assets because he was in jail
    and unable to provide for his family. [Docket Entry No. 22]. He explained that he gave
    his wife power of attorney so that she could sell the home that he owned since 2004 and
    use the equity as a cushion to live on and help support the family while he was
    incarcerated. Monaco admitted that his credit cards have had major usage since his
    incarceration in August 2020. He assumed the cards were “maxed out” because the
    credit cards were used to repair the house in order to sell it. The house was sold
    December 19, 2020.
    {¶8}   In his Affidavit of Property filed April 19, 2021, Monaco listed under
    “Transfer of Assets” at page 5, the 1986 Monte Carlo SS, hand tools/saws/drills, and 401k
    as for “the care of family Maranda Monaco.” At page 6, Monaco listed credit cards in his
    name for Lowes, in the amount of $2,300, Amazon, in the amount of $6,000, and Chase
    in the amount of $2,500. [Docket Entry No. 24].
    {¶9}   On September 7, 2021, Miranda filed a Separation Agreement. [Docket
    Entry No. 52].
    The Separation Agreement
    {¶10} The Separation Agreement signed by Monaco on August 4, 2021 provided
    that Maranda would receive the 2012 Chevrolet Silverado, the 1986 Monte Carlo SS, and
    the 1999 Yamaha four-wheeler, free from any claim of Monaco. Monaco would retain
    any vehicle in his name.
    Tuscarawas County, Case No. 2023 AP 01 0001                                              4
    {¶11} Miranda was to receive the residence located at 442-2nd Drive NE, New
    Philadelphia, Ohio 44663 free and clear of any interest of Monaco. Monaco agreed that
    Miranda purchased this residence after the parties' separation and that he released his
    dower rights to this property at the time of its purchase.
    {¶12} Each party agreed to assume and pay all outstanding debts listed in their
    name, individually whether such debt was incurred before the marriage, during the
    marriage or during any period of separation. The parties stipulated they had no joint debt.
    {¶13} The parties were to keep their own pension and/or retirement funds free and
    clear from the other party. The parties were advised by legal counsel that they do not
    have present values for the retirement funds, pension, or any other deferred
    compensation account. Despite advice from legal counsel, the parties agreed to waive
    their right to have any retirement fund, pension, deferred compensation account, or the
    like, evaluated for present value by a qualified evaluator. Both parties were advised that
    they have the right to pursue a division of any retirement, pension, and/or deferred
    compensation benefit by Qualified Domestic Relation Order, Division of Property Order,
    or similar method.
    {¶14} On November 3, 2021, a Magistrate's Decision was filed, which
    recommended granting the parties Decree of Divorce. [Docket Entry No. 75]. The
    magistrate’s decision adopting the Separation Agreement and recommending the
    granting of the divorce contained an advisement that written objections to the decision
    must be filed in writing within fourteen days of the filing of the decision otherwise he or
    she may not assign as error on appeal the court's adoption of any factual finding or legal
    Tuscarawas County, Case No. 2023 AP 01 0001                                               5
    conclusion unless he or she specifically objected to the factual finding or legal conclusion
    as required by Civ.R. 53(D)(3)(b).
    {¶15} Neither party filed objections to the magistrate’s decision. On November
    19, 2021, the trial court adopted the magistrate's decision and issued the parties Decree
    of Divorce.   [Docket Entry No. 78].
    {¶16} On September 16, 2022, Monaco filed a Post-Decree Motion for Relief from
    Judgment. [Docket Entry No. 89]. On September 29, 2022, Monaco filed a motion to
    compel his transportation from prison to appear before the trial court for the hearing on
    his motion. [Docket Entry No. 97].
    {¶17} On October 5, 2022, the trial court denied Monaco’s motion to compel, and
    cancelled the oral hearing scheduled for November 7, 2022, and alternatively issued a
    briefing schedule and set the matter for a non-oral hearing on November 14, 2022.
    [Docket Entry No. 101].
    {¶18} On October 27, 2022, Maranda filed a motion to dismiss and memorandum
    in support in response to Monaco's motion to vacate. On November 7, 2022, Monaco
    filed a motion for summary judgment and motion to strike Maranda’s motion for dismissal.
    {¶19} After conducting a non-oral hearing, and reviewing the motions filed by the
    parties, on December 8, 2022, the trial court issued a Judgment Entry that denied
    Monaco's motion for relief from judgment.
    Assignments of Error
    {¶20} Monaco raises three Assignments of Error,
    {¶21} “I.   THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S
    MOTION TO COMPEL TRANSPORT OR ARRANGE A VIDEO CONFERENCE FOR
    Tuscarawas County, Case No. 2023 AP 01 0001                                                 6
    THE TWICE SCHEDULED ORAL 'IN PERSON' HEARING, THE DENIAL WAS AN
    ABUSE OF DISCRETION AND VIOLATED DUE PROCESS AND EQUAL PROTECTION
    RIGHTS.
    {¶22} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
    RESCHEDULED A TWICE SCHEDULED 'LIVE AND IN PERSON' (ORAL) HEARING AS
    A NON-ORAL HEARING IN RESPONSE TO THE DEFENDANTS MOTION TO BE
    PRESENT AT SAID ORAL HEARING.
    {¶23} “III. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN
    DENYING THE MOTION FOR VACATING THE JUDGMENT WHERE SUFFICIENT
    EVIDENCE OF QUALITY AND WEIGHT WERE PRESENTED TO MERIT THE 60(B).”
    Pro se Appellant
    {¶24} We understand that Monaco has filed this appeal pro se. Nevertheless,
    “like members of the bar, pro se litigants are required to comply with rules of practice and
    procedure.” Hardy v. Belmont Correctional Inst., 10th Dist. No. 06AP–116, 2006–Ohio–
    3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007–T–0022, 2008–Ohio–2128, ¶ 11.
    We also understand that “an appellate court will ordinarily indulge a pro se litigant where
    there is some semblance of compliance with the appellate rules.” State v. Richard, 8th
    Dist. No. 86154, 2005–Ohio–6494, ¶ 4 (internal quotation omitted). We realize that an
    incarcerated litigant is subject to restrictions and has limited access to research materials,
    making it more difficult to timely comply with certain appellate rules. See, Karmasu v.
    Tate, 4th Dist. Scioto No 94 CA 2217, 
    1994 WL 521235
    . Although in a pro se action the
    court allows latitude to the unrepresented defendant in the presentation of his case, the
    court is not required to totally throw the Rules out the window. See, Wellington v.
    Tuscarawas County, Case No. 2023 AP 01 0001                                               7
    Mahoning Cty. Bd. of Elections, 
    117 Ohio St.3d 143
    , 
    2008-Ohio-554
    , 
    882 N.E.2d 554
    ,
    ¶18. (A substantial disregard for the rules cannot be tolerated).
    {¶25} One area where this Court does not have discretion to overlook, is where
    facts, argument or evidence has been presented in the appellate brief that were not
    presented to the trial court during the proceedings in the lower court. In State v. Hooks,
    
    92 Ohio St.3d 83
    , 
    2001-Ohio-150
    , 
    748 N.E.2d 528
    (2001), the Supreme Court noted, “a
    reviewing court cannot add matter to the record before it that was not a part of the trial
    court’s proceedings, and then decide the appeal on the basis of the new matter. See,
    State v. Ishmail, 
    54 Ohio St.2d 402
    , 
    377 N.E.2d 500
    (1978).” It is also a longstanding rule
    “that the record cannot be enlarged by factual assertions in the brief.” Dissolution of Doty
    v. Doty, 4th Dist. No. 411, 
    1980 WL 350992
     (Feb. 28, 1980), citing Scioto Bank v.
    Columbus Union Stock Yards, 
    120 Ohio App. 55
    , 59, 
    201 N.E.2d 227
    (1963). New
    material and factual assertions contained in any brief in this court may not be considered.
    See, North v. Beightler, 
    112 Ohio St.3d 122
    , 2006–Ohio–6515, 
    858 N.E.2d 386
    , ¶ 7,
    quoting Dzina v. Celebrezze, 
    108 Ohio St.3d 385
    , 2006–Ohio–1195, 
    843 N.E.2d 1202
    , ¶
    16. Therefore, we have disregarded facts and documents in the parties brief that are
    outside of the record.
    {¶26} In the interests of justice, we shall attempt to consider Monaco’s
    assignments of error.
    I, II & III
    {¶27} Monaco’s three Assignments of Error challenge the trial court’s denial of his
    motion for relief pursuant to Civ.R. 60(B)(3) (“fraud [whether heretofore denominated
    intrinsic or extrinsic], misrepresentation or other misconduct of an adverse party”).
    Tuscarawas County, Case No. 2023 AP 01 0001                                               8
    {¶28} After reviewing Monaco’s brief including his contentions, we have
    interpreted Monaco’s three assignments of error in the following manner: “the trial court
    erred in denying his request for relief without conducting an evidentiary hearing.” Because
    all three of Monaco’s challenges involve the issue of Civ.R. 60(B) relief, we will address
    them collectively.
    Standard of Appellate Review
    {¶29} In order to prevail on a motion for relief from judgment pursuant to Civ.R.
    60(B), the movant must demonstrate: (1) a meritorious claim or defense; (2) entitlement
    to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) timeliness
    of the motion. GTE Automatic Electric v. ARC Industries, 
    47 Ohio St.2d 146
    , 
    351 N.E.2d 113
     (1976) paragraph two of the syllabus. If any of these three requirements is not met,
    the motion should be overruled. Svoboda v. Brunswick, 
    6 Ohio St.3d 348
    , 351, 
    453 N.E.2d 648
    , 651(1983).
    {¶30} Although a movant is not required to support its motion with evidentiary
    materials, the movant must do more than make bare allegations that he or she is entitled
    to relief. Rose Chevrolet v. Adams, 
    36 Ohio St.3d 17
    , 20-21, 
    520 N.E.2d 564
    (1988). In
    order to convince the court to set aside the judgment or to grant a hearing, the movant
    may decide to submit evidentiary materials in support of its motion.          Kay v. Marc
    Glassman, Inc. 
    76 Ohio St.3d 18
    , 20, 
    665 N.E.2d 1102
    (1996).
    {¶31} If the Civ.R. 60(B) motion contains allegations of operative facts which
    would warrant relief under Civil Rule 60(B), the trial court should grant a hearing to take
    evidence to verify those facts before it rules on the motion. Kay v. Marc Glassman, Inc.,
    
    76 Ohio St.3d 18
    , 
    665 N.E.2d 1102
    (1996); Coulson v. Coulson, 
    5 Ohio St.3d 12
    , 16, 448
    Tuscarawas County, Case No. 2023 AP 01 0001 
    9 N.E.2d 809
    , 812 (1983). Conversely, an evidentiary hearing is not required where the
    motion and attached evidentiary material do not contain allegations of operative facts
    which would warrant relief under Civ.R. 60(B). State ex rel. Richard v. Seidner, 
    76 Ohio St.3d 149
    , 151, 
    666 N.E.2d 1134
    , 1136 (1996); S. Ohio Coal Co. v. Kidney, 
    100 Ohio App.3d 661
    , 667, 
    654 N.E.2d 1017
    , 1021(1995).
    {¶32} Whether to conduct a hearing, or whether relief should be granted, is
    addressed to the sound discretion of the trial court. Griffey v. Rajan, 
    33 Ohio St.3d 75
    ,
    77, 
    514 N.E.2d 1122
    , 112(1987); Accord, Rose Chevrolet v. Adams, 
    36 Ohio St.3d 17
    ,
    20, 
    520 N.E.2d 564
    (1988).
    {¶33} For a court of appeals to reach an abuse-of-discretion determination, the
    trial court’s judgment must be so profoundly and wholly violative of fact and reason that
    “‘it evidences not the exercise of will but perversity of will, not the exercise of judgment
    but defiance thereof, not the exercise of reason but rather of passion or bias.’”. State v.
    Weaver, Slip Op. 
    2022-Ohio-4371
    , ¶24 (Dec. 8, 2022), quoting Spalding v. Spalding, 
    355 Mich. 382
    , 
    94 N.W.2d 810
     (1959) at 384-385, rejected in part by Maldonado v. Ford Motor
    Co., 
    476 Mich. 372
    , 388, 
    719 N.W.2d 809
     (2006) (“we prefer the articulation of the abuse
    of discretion standard in [People v. Babcock, 
    469 Mich. 247
    , 
    666 N.W.2d 231
     (2003)].
    This Court has recognized that an abuse of discretion can be found where the reasons
    given by the court for its action are clearly untenable, legally incorrect, or amount to a
    denial of justice, or where the judgment reaches an end or purpose not justified by reason
    and the evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827, 
    2014-Ohio-477
    , ¶35;
    In re Guardianship of S.H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9;
    State v. Firouzmandi, 5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823, ¶54.
    Tuscarawas County, Case No. 2023 AP 01 0001                                              10
    Issue for Appellate Review: Whether the trial court abused its discretion by
    denying without a hearing Monaco’s motion for relief under Civ R 60(B)(3) by finding the
    allegations of operative facts did not warrant relief from judgment
    {¶34} A separation agreement is a contract.         Jackson v. Jackson, 5th Dist.
    Richland No. 12CA28, 
    2013-Ohio-3521
    , ¶22.             In the absence of fraud, duress,
    overreaching or undue influence, or of a factual dispute over the existence of terms in the
    agreement the agreement should not be set aside. Neither a change of heart nor poor
    legal advice is a ground to set aside a settlement agreement. Pastor v. Pastor, 5th Dist.
    Fairfield No. 04 CA 67, 2005–Ohio–6946, ¶ 18, citing Walther v. Walther, 
    102 Ohio App.3d 378
    , 383, 
    657 N.E.2d 332
     (1st Dist. 1995); Jackson, ¶24.
    {¶35} Through his Civ.R. 60(B)(3) motion Monaco argued that the separation
    agreement should be set aside because he was under duress from his criminal case and
    because it was fraudulently obtained. Monaco alleged Maranda instigated the transfer of
    assets knowing in advance that she would file for divorce, and further, after filing for
    divorce she misled him into signing the Separation Agreement by indicating that she
    would not divorce him if he signed it. In her response, Maranda alleges that Monaco
    instigated the action in response to learning of her relationship with another individual.
    Duress
    {¶36} To avoid a contract on the basis of duress, a party must prove coercion by
    the other party to the contract. Blodgett v. Blodgett, 
    49 Ohio St.3d 243
    , 
    551 N.E.2d 1249
    (1990), syllabus.    The Blodgett court further observed that three elements are
    common to all situations where duress has been found to exist: (1) that one side
    involuntarily accepted the terms of another; (2) that circumstances permitted no other
    Tuscarawas County, Case No. 2023 AP 01 0001                                               11
    alternative; and (3) that said circumstances were the result of coercive acts of the opposite
    party. Blodgett, at 246, 
    551 N.E.2d 1249
    , citations omitted.
    Monaco did not provide allegations of operative facts which would warrant
    relief from judgment on the basis of duress
    {¶37} Monaco claims that Maranda encouraged him to plead guilty to the
    indictment in the criminal case. There is no evidence in the record, other than Monaco’s
    self-serving statements, to support this assertion. Monaco was represented by counsel
    in that case. This Court upheld the trial court’s denial of Monaco’s motion to withdraw his
    post-sentence guilty plea. See, State v. Monaco, 5th Dist. Tuscarawas No. 2021 AP 01
    0002, 
    2021-Ohio-3888
    . Any duress Monaco was under was not caused by Maranda.
    Monaco, not Maranda, was solely responsible for the conduct that resulted in the
    indictment to which he pled guilty.
    {¶38} Monaco did not substantiate operative facts that no other alternative was
    available.   Monaco could have simply not signed the separation agreement and
    proceeded to contest the division of property in the divorce case. Monaco did not file an
    objection to the magistrate’s decision or an appeal from the trial court’s decision. Monaco
    waited nearly one year after the issuance of the divorce decree to file his Civ.R. 60(B)
    motion.
    Fraud
    {¶39} Monaco next contends that the separation agreement was procured by
    fraud. [Appellant’s brief at 14-16].
    {¶40} The elements of fraud are well-established and are generally stated to be
    1). an actual or implied misrepresentation of material fact; 2). made with knowledge that
    Tuscarawas County, Case No. 2023 AP 01 0001                                                 12
    the representation is false or with utter disregard for its truth or falsity; 3). made with the
    intention of misleading the other party into relying upon it, and; 4). reliance by the other
    party upon the misstated fact with resulting injury as a consequence of such reliance.
    Block v. Block, 
    165 Ohio St. 365
     
    135 N.E.2d 857
    (1956), paragraph two of the syllabus.
    To set aside a separation agreement on the grounds that one of the parties was induced
    to sign the agreement as a result of the fraudulent acts of the other party, the essential
    elements of fraud must be established.
    Monaco has failed to allege operative facts sufficient to establish his
    entitlement to relief on the basis of fraud with respect to the sale of the home he
    had owned
    {¶41} Monaco admitted that he gave Maranda power of attorney so she could sell
    the house that he owned. By his own admission, Monaco was aware the house was sold
    December 19, 2020, some seven months prior to signing the separation agreement on
    August 4, 2021. In his motion for relief from judgment, Monaco noted that the retainer to
    pay his attorney in the criminal case was paid from a portion of the proceeds. In his
    Answer to the divorce complaint, Monaco professed his desire to provide for his family
    while incarcerated. He presented nothing that indicates or suggests Maranda made a
    false or misleading statement that caused Monaco to transfer the house to her.
    Monaco has failed to allege operative facts sufficient to establish his
    entitlement to relief on the basis of fraud with respect to the credit cards in his
    name
    Tuscarawas County, Case No. 2023 AP 01 0001                                            13
    {¶42} Monaco contends that Maranda used his credit cards with no intent to pay
    them off. He argued he did not know the balances were “maxed out” prior to February
    2022.
    {¶43} Monaco consented to Maranda using the credit cards by giving her his
    power of attorney. Monaco was aware the cards were used in order to prepare the home
    for sale. Monaco represented to the court on April 19, 2021 that he, at the very least,
    believed his credit cards were maxed out. Monaco knew that he did not have the credit
    card records before he signed the separation agreement. Attached as Exhibit D to
    Monaco’s motion is a JPay correspondence dated February 8, 2021 in which Maranda
    told Monaco that if she used the proceeds from the sale of the home to pay off his bills,
    “it will leave the boys and I nothing.” She indicated that she could not do that and asked
    Monaco to inform his mother of that fact. Thus, Monaco was on notice prior to signing
    the separation agreement that Maranda had not used the proceeds from the sale of the
    home to pay his bills.
    {¶44} Monaco presented no operative facts that Maranda made a false or
    misleading statement with respect to his credit cards.
    Monaco has failed to allege operative facts sufficient to establish his
    entitlement to relief on the basis of fraud with respect to his 401(K)
    {¶45} In his Affidavit of Property filed April 19, 2021, Monaco listed under
    “Transfer of Assets” at page 5, his 401(K) for “care of family Maranda Monaco.” [Docket
    No. 24]. The separation agreement clearly states that neither party had present values
    for any retirement funds, pension, or any other deferred compensation account. Monaco
    Tuscarawas County, Case No. 2023 AP 01 0001                                              14
    further waived his right to have any retirement fund, pension, deferred compensation
    account, or the like, evaluated for present value by a qualified evaluator.
    {¶46} In his Answer to the divorce complaint, Monaco was adamant that he had
    literally given his family “everything that I had and legally owned to ensure that they were
    taken care of while I fight my battles.” The evidence establishes that any transfer was
    done so that his family could be supported while he was in prison, not as the result of any
    action on the part of Maranda to mislead Monaco into believing she would not divorce
    him.
    Property located at 442-2nd Drive, N.E. New Philadelphia, Ohio 44663
    {¶47} Monaco alleged in his Motion for Relief that Maranda forged the warranty
    deed to the property located at 442-2nd Drive, N.E. New Philadelphia, Ohio 44663. He
    further claims that he never released his dower interest.
    {¶48} Monaco is not listed on the mortgage as a borrower or a co-borrower. The
    borrower is listed solely as Maranda.      Maranda and Monaco signed the mortgage
    document on June 17, 2021.
    {¶49} Maranda was given the home free and clear of any interest of Monaco by
    the separation agreement. The agreement noted that she purchased this residence after
    the parties' separation and that Monaco had released his dower interest. Monaco did not
    file an objection to the magistrate’s decision claiming fraud in the purchase of the
    residence by Maranda, or that he did not in fact release his dower interest. It is well
    established that a Civ.R. 60(B) motion cannot be used as a substitute for an appeal and
    that the doctrine of res judicata applies to such a motion. Harris v. Anderson, 
    109 Ohio St.3d 101
    , 
    2006-Ohio-1934
    , 
    846 N.E.2d 43
    , ¶ 8–9. See also, Doe v. Trumbell County
    Tuscarawas County, Case No. 2023 AP 01 0001                                               15
    Children Services Bd., 
    28 Ohio St.3d 128
    , paragraph 2 of the syllabus. Monaco waited
    nearly one year to file his Civ.R. 60(B) motion, in spite of the fact that the separation
    agreement clearly spelled out the terms concerning this residence,
    Misrepresentations concerning maintaining action for divorce
    {¶50} Monaco failed to present any evidence other than his personal belief that
    Maranda instigated the power of attorney, the transfer of assets, or the separation
    agreement knowing in advance that she would divorce him. Monaco has failed to present
    operative facts that after filing for divorce, Maranda misled him into signing the Separation
    Agreement by indicating that she would not divorce him if he signed it.
    {¶51} Monaco gave his wife power of attorney because he was incarcerated and
    unable to support his family. Seven months elapsed from the time Monaco signed the
    power of attorney to the time Maranda filed for divorce. During that time, Monaco received
    an aggregate prison sentence of 15 years to life.
    {¶52} Monaco knew the facts and circumstances underlying the decision to file for
    divorce by his wife. Monaco knew that his wife had filed for divorce. He knew the terms
    in the separation agreement and elected to proceed with the dissolution. Although he
    may have desired to reconcile with his wife, we find nothing in the record to indicate that
    she ever promised Monaco she would reconcile, wait for him to be released from prison,
    or that she would withdraw her complaint for divorce. In fact, Monaco himself claimed
    that the system was forcing the couple to divorce so that his family would qualify for
    government assistance. His conclusionary assertions claiming ignorance of the law and
    overreaching, duress or fraud by Maranda do not amount to substantial grounds that
    justify granting relief. See Settonni v. Settonni, 8th Dist. Cuyahoga No. 97784, 2012-
    Tuscarawas County, Case No. 2023 AP 01 0001                                             16
    Ohio-3084, ¶ 33 (“Appellant cannot now rely on Civ.R. 60(B)(4) to vacate his voluntary,
    deliberate choice to enter into an agreement merely because hindsight reveals he may
    not have made a wise choice.”). H.G. v. E.G., 8th Dist. Cuyahoga No. 111004, 2022-Ohio-
    2585, ¶24. Monaco does not present any corroborating evidence, or legal authority to
    support his allegation that he is entitled to relief from judgment.
    {¶53} We find that Monaco did not present sufficient operative facts to allege the
    defense of duress or to demonstrate fraud, misrepresentation, or misconduct under Civ.R.
    60(B)(3).   See Settonni v. Settonni, 8th Dist. No. 97784, 2012–Ohio–3084, ¶ 27
    (appellee’s assertion that appellant’s threats compelled him to sign an unfair separation
    agreement “rises only to the level of a mere general allegation that these events occurred”
    and does not justify relief under Civ.R. 60(B)(3).”). It was not an abuse of discretion for
    the trial court to deny Monaco’s Civ.R. 60(B)(3) motion for relief from judgment.
    {¶54} Because Monaco failed to establish operative facts to allege the defense of
    duress or to demonstrate fraud, misrepresentation, or misconduct, it was unnecessary for
    the trial court to conduct a hearing before overruling Monaco’s motion. Therefore, it was
    unnecessary for the trial court to order Monaco transported to court because no hearing
    was required and no in-person hearing took place.
    Tuscarawas County, Case No. 2023 AP 01 0001                                        17
    {¶55} Monaco’s First, Second and Third Assignments of Error are overruled.
    {¶56} The judgment of the Tuscarawas County Court of Common Pleas is
    affirmed.
    [Cite as Monaco v. Monaco, 
    2023-Ohio-1869
    .]
    IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    MARANDA MONACO                                  :
    :
    Plaintiff-Appellee   :
    :
    :
    -vs-                                            :       JUDGMENT ENTRY
    :
    JASON MONACO                                    :
    :
    :
    Defendant-Appellant       :       CASE NO. 2023 AP 01 0001
    For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
    the Tuscarawas County Court of Common Pleas is affirmed. Costs to appellant.
    _________________________________
    HON. W. SCOTT GWIN
    _________________________________
    HON. WILLIAM B. HOFFMAN
    _________________________________
    HON. JOHN W. WISE