Blakeman v. Pelloski , 2021 Ohio 560 ( 2021 )

[Cite as Blakeman v. Pelloski, 2021-Ohio-560.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Jaimi L. Blakeman, :
Petitioner-Appellee, : No. 19AP-772
(C.P.C. No. 15DR-4697)
v. :
(REGULAR CALENDAR)
Christopher E. Pelloski, :
Petitioner-Appellant. :
D E C I S I O N
Rendered on March 2, 2021
On brief: Collins & Slagle Co., LPA, Ehren W. Slagle, and
Kathryn L. Traven, for appellee. Argued: Ehren W. Slagle.
On brief: Wolinetz & Horvath, LLC, and Dennis E. Horvath,
for appellant. Argued: Eric M. Brown.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
DORRIAN, P.J.
{¶ 1} Appellant, Christopher E. Pelloski, appeals from a decision and judgment
entry of the Franklin County Court of Common Pleas, Division of Domestic Relations,
which denied his Civ.R. 60(B) motion for relief from judgment. For the following reasons,
we affirm.
I. Facts and Procedural History
{¶ 2} Appellant and appellee, Jaimi L. Blakeman, were married in May 1997, and
had twin children born in December 2007. The parties relocated from Texas to Upper
Arlington, Ohio in 2009. Appellant was the Director of the Pediatric Radiation-Oncology
Program, Residency Program Director and Laboratory Research Principle Investigator at
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the Arthur G. James Cancer Hospital ("the James") and treated children referred to the
James by Nationwide Children's Hospital.
{¶ 3} On July 24, 2013, appellant was charged with receiving visual depictions of
minors engaged in explicit sexual activity via the Internet in violation of 18 U.S.C.
2252(a)(5)(B). See United States v. Pelloski, 31 F. Supp.3d 952 (2014). Appellant reported
being sexually abused on three separate instances as a child, when he was three or four,
when he was six and when he was seven. Id. at 961. Following his arrest, appellant began
to attend outpatient mental health therapy with Michelle Risser. Risser noted appellant
presented with symptoms of depression and alcohol abuse. Risser assessed appellant for
Post-Traumatic Stress Disorder ("PTSD") and sexual abuse issues. Appellant's PTSD
symptoms included traumatic memories, flashbacks, and dissociative symptoms resulting
from his childhood sexual abuse. Risser reported she was working with appellant to
address the link between his traumatic memories and the viewing of child pornography as
a way to make sense of intrusive mental images of his own abuse. See id. Appellant states
that a symptom of his PTSD is " 'repetition compulsion,' which is a behavior where a victim
seeks out triggers that bring about re-experiencing a traumatic event." (Appellant's Brief
at 4.) This symptom resulted in appellant accessing child pornography.
{¶ 4} On October 4, 2013, appellant entered into a plea agreement, in which he
plead guilty to the indictment. Id. On November 14, 2o13, Dr. David Tennenbaum
evaluated appellant in connection with his criminal case. Dr. Tennenbaum reported:
In his interview, [appellant] reported that he began to use
peer-to-peer programs to download pornography more than
ten years ago. In 2005, [appellant] reported downloading
child pornography "accidentally." As [appellant] began to
search for and view images of child pornography, he
remembered his past molestation as a child. Psychological
testing indicated that the [appellant] suffered from PTSD,
generalized anxiety disorder, and alcohol abuse. Tennenbaum
concluded that there was no indication that [appellant]
attempted, or considered attempting, a contact offense, and
therefore he was at the "lowest level of risk." In conclusion,
Tennenbaum recommended that [appellant] continue
treatment with Risser and to continue his regimen of
psychiatric medications.
(Citations omitted.) Pelloski at 961.
No. 19AP-772 3
{¶ 5} Appellant was subject to house arrest for 14 months while awaiting trial.
During this time, the parties remained in the marital home and appellant authored a novel.
On July 21, 2014, appellant was sentenced to 12 months and 1 day of imprisonment, a
$10,000 fine, and a term of 5 years of supervised release. Pelloski. On September 16, 2014,
appellant commenced his term of imprisonment and served approximately 7 months and
then spent 3 months in Alvis House. Appellant lost his job and his medical license was
suspended indefinitely and later permanently revoked.
{¶ 6} In 2015, the parties began negotiating the termination of their marriage. On
June 29, 2015, appellee sent appellant a first settlement proposal to terminate the parties'
marriage, on September 3, 2015, a separation agreement was mailed to appellant, and on
November 5, 2015, final documents related to dissolution were sent to appellant. Appellant
signed the separation agreement on November 24, 2015 and appellee signed the document
on December 18, 2015. On December 29, 2015, the parties' dissolution was filed and
finalized on February 2, 2016.
{¶ 7} As a condition of his supervised release, appellant began therapeutic
treatment with Fred Baxter of Greater Cincinnati Behavioral Health Services with his initial
assessment in January 2016. Appellant met with Baxter approximately 6 times a month
(individually and in group sessions) for 23 months, from February 2016 to January 2018.
{¶ 8} On October 2, 2018, appellant filed a Civ.R. 60(B)(5) motion for relief from
judgment seeking to vacate the parties' dissolution documents, including the separation
agreement. Appellant attached an affidavit from Baxter dated September 11, 2018. The
trial court found appellant failed to meet the standards of Loc.R. 13(C) of the Franklin
County Court of Common Pleas, Domestic Relations Division for a hearing and failed to
meet the standards of GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St. 2d 146
(1976), because his motion was not filed in a reasonable time; thus, the trial court denied
appellant's Civ.R. 60(B) motion on October 29, 2019.
II. Assignment of Error
{¶ 9} Appellant appeals and assigns the following sole assignment of error for our
review:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
WHEN IT CONCLUDED THAT APPELLANT FAILED TO
No. 19AP-772 4
FILE HIS REQUEST FOR RELIEF WITHIN A REASONABLE
TIME PURSUANT TO CIVIL RULE 60(B).
III. Analysis
{¶ 10} By his assignment of error, appellant contends the trial court erred and
abused its discretion when it concluded that appellant failed to file his request for relief
from judgment within a reasonable time pursuant to Civ.R. 60(B). Civ.R. 60(B)(5)
provides, as follows:
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 proceeding for the following reasons: * * *
(5) any other reason justifying relief from the judgment. The
motion shall be made within a reasonable time[.]
{¶ 11} The requirements a movant must demonstrate to prevail on a Civ.R. 60(B)(5)
motion, include: (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. GTE Automatic at
paragraph two of the syllabus. The moving party must establish the three requirements
separately and the test is not fulfilled if any one of the requirements is not met. Id. at 151.
{¶ 12} The granting or denying of a Civ.R. 60(B) motion is a matter within the sound
discretion of the trial court and the court's ruling will not be reversed absent a showing of
abuse of discretion. Griffey v. Rajan, 33 Ohio St. 3d 75, 77 (1987). The term "abuse of
discretion" connotes more than an error of law or judgment; it implies that the court's
attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983). Even under an abuse of discretion standard, however, "no court has
the authority, within its discretion, to commit an error of law." JPMorgan Chase Bank,
N.A. v. Liggins, 10th Dist. No. 15AP-242, 2016-Ohio-3528, ¶ 18, quoting State v. Akbari,
10th Dist. No. 13AP-319, 2013-Ohio-5709, ¶ 7.
{¶ 13} Appellant argues he has met the GTE Automatic requirements because he
has a meritorious claim due to the inequitable terms contained in the separation
agreement; he is entitled to relief pursuant to Civ.R. 60(B)(5) due to undue influence
and/or duress; and that he filed his request within a reasonable time relative to his financial
and mental health improvements. Appellant argues that because of his PTSD, significant
No. 19AP-772 5
emotional issues and diminished mental capacity, he was unable to recognize the merits of
his claim for relief and his need to file the Civ.R. 60(B) motion until after his treatment with
Baxter was completed.
{¶ 14} Appellant attached Baxter's affidavit to his Civ.R. 60(B) motion. Baxter's
affidavit provided that Baxter began working with appellant through the terms and
conditions of appellant's parole. Baxter met with appellant individually once every 2 weeks
and met in a group setting every week, thus approximately 6 times each month. Appellant
completed his initial assessment in January 2016, began treatment in February 2016, and
continued treatment for 23 months. Baxter stated that when appellant started treatment
he "had a significant level of emotional guilt associated with his circumstances, particularly
as it related to what his family had experienced." (Baxter Aff. at ¶ 5.) According to Baxter,
the termination of the marriage was a subject of their earlier discussions because appellant
"was [] in the midst of proceedings to terminate his marriage." (Baxter Aff. at ¶ 6.)1
{¶ 15} Baxter stated the dissolution process was such a stressor for appellant that he
simply wanted the process completed. Baxter stated that appellant told him he feared
negative consequences if he contested the dissolution, specifically a fear he would not see
his children.
{¶ 16} Baxter concluded that, given appellant's PTSD, various stressors, and
emotional issues, Baxter:
[Had] concerns about the extent of his capacity to enter into
and acknowledge agreements at that time. I believe Mr.
Pelloski was acting impulsively, and I do not believe he was
considering the ramifications of his decisions. Due to his
then-existing mental health, I believe he was very susceptible
of making poor decisions just to resolve them because of his
guilt. In my opinion, he was feeling overwhelmed, and decided
that due to his shame and guilt, that agreeing to a dissolution
was his only option.
(Baxter Aff. at ¶ 7.)
{¶ 17} Appellant argues that because of his diminished mental capacity, the time
period for determining whether he filed his Civ.R. 60(B) motion within a reasonable time
1Appellant's therapy with Baxter began in January/February 2016 and appellant signed the separation
agreement on November 24, 2015 and the dissolution was finalized on February 2, 2016.
No. 19AP-772 6
should not begin to run until after his treatment with Baxter was completed, thus, January
2018. Since he filed his Civ.R. 60(B) motion on October 2, 2018, he contends the motion
was filed within a reasonable time.
{¶ 18} The trial court concluded that appellant failed to allege operative facts
supporting the finding that appellant had filed his motion within a reasonable time. The
trial court did not address the other GTE Automatic requirements because the test is not
fulfilled if any one of the requirements is not met. GTE Automatic at 151.
{¶ 19} A determination of what constitutes reasonable time for Civ.R. 60(B) relief
"necessarily involves consideration of the facts and circumstances of the particular case."
Home Savings & Loan Co. of Youngstown Ohio v. Avery Place, LLC, 10th Dist. No. 13AP-
777, 2014-Ohio-1747, ¶ 12, citing Morris v. Morris, 2d Dist. No. 2013-CA-29, 2014-Ohio-
734, ¶ 34. A court may grant relief under Civ.R. 60(B)(5) only in those extraordinary and
unusual cases where the moving party demonstrates substantial grounds warranting relief
from judgment. Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St. 3d 64 (1983), paragraph two of
the syllabus; Social Psychological Servs., Inc. v. Magellan Behavioral Health, Inc., 10th
Dist. No. 10AP-326, 2010-Ohio-6531, ¶ 17. The movant bears the burden of submitting
factual material that demonstrates the timeliness of the motion. TPI Asset Mgt., LLC v.
Benjamin, 10th Dist. No. 11AP-334, 2011-Ohio-6389, ¶ 14.
{¶ 20} In this case, appellee initially sent appellant a first settlement proposal to
terminate the parties' marriage on June 29, 2015. The parties negotiated the settlement
until November 5, 2015, when final documents were sent to appellant. Appellant signed
the separation agreement on November 24, 2015 and appellee signed the document on
December 18, 2015. The dissolution was filed December 29, 2015 and finalized on
February 2, 2016. Appellant did not file his Civ.R. 60(B) motion for 2 years and 8 months
after the dissolution was finalized (and approximately 35 months after he agreed), on
October 2, 2018. Even using appellant's timeline, he did not file his motion until 8 months
after he completed counseling (January 2018 and October 2, 2018).
{¶ 21} Given this timeline, we cannot say the trial court abused its discretion in
finding appellant did not meet his burden of submitting factual material that demonstrated
the timeliness of his motion.
No. 19AP-772 7
{¶ 22} Finally, in the last paragraph of appellant's brief and during oral argument,
appellant argued that the evidence constitutes operative facts sufficient to schedule an oral
hearing based on Loc.R. 13(C). However, although appellant makes this argument, he did
not assign as error the trial court's not holding a hearing on his Civ.R. 60(B)(5) motion.
{¶ 23} " 'This court rules on assignments of error, not mere arguments.' " Mun. Tax
Invest. LLC v. Northup Reinhardt Corp., 10th Dist. No. 19AP-26, 2019-Ohio-4867, ¶ 24,
quoting Huntington Natl. Bank v. Burda, 10th Dist. No. 08AP-658, 2009-Ohio-1752, ¶ 21,
citing App.R. 12(A)(1)(b) (which states "a court of appeals shall * * * [d]etermine the appeal
on its merits on the assignments of error set forth in the briefs"); Williams v. Barrick, 10th
Dist. No. 08AP-133, 2008-Ohio-4592, ¶ 28 (holding that appellate courts "rule[] on
assignments of error only, and will not address mere arguments").
{¶ 24} Nevertheless, even considering appellant's argument, we find no error.
Loc.R. 13(C) provides: "Motions requesting relief from judgment which do not involve lack
of service or lack of jurisdiction will be reviewed by the court and scheduled for hearing if
the materials submitted allege operative facts which, if proven, would warrant relief from
judgment. All other motions for relief from judgment will be determined without oral
argument."
{¶ 25} "In order to be entitled to a hearing on a motion for relief from judgment, a
movant 'must demonstrate why he is entitled to a hearing on the motion, and must allege
operative facts which would warrant relief under Civ.R. 60(B).' " Social Psychological
Servs. at ¶ 18, quoting Cunningham v. Ohio Dept. of Transp., 10th Dist. No. 08AP-330,
2008-Ohio-6911, ¶ 37. In the instant case, appellant did not set forth operative facts
demonstrating the motion was filed within a reasonable time, and thus the trial court did
not abuse its discretion in denying appellant's Civ.R. 60(B) motion without holding an
evidentiary hearing. Id.
{¶ 26} Under the facts of this case, given the lengthy time period between the parties
finalizing the dissolution and when appellant filed his motion (2 years and 8 months after
the dissolution was finalized and approximately 35 months after he agreed), as well as the
lengthy time period between when appellant completed his treatment and when he filed his
motion (approximately 9 months), we cannot say the trial court abused its discretion in
finding that appellant did not allege operative facts to demonstrate the motion was filed
No. 19AP-772 8
within a reasonable time and denying his Civ.R. 60(B) motion. The trial court did not abuse
its discretion in finding appellant failed to file his Civ.R. 60(B) motion in a reasonable time.
Accordingly, appellant's assignment of error is overruled.
IV. Conclusion
{¶ 27} For the foregoing reasons, appellant's sole assignment of error is overruled,
and the judgment of the Franklin County Court of Common Pleas, Division of Domestic
Relations, is affirmed.
Judgment affirmed.
LUPER SCHUSTER and HESS, JJ., concur.
HESS, J., of the Fourth Appellate District, sitting by
assignment in the Tenth Appellate District.