Oyer v. Oyer

[Cite as Oyer v. Oyer, 2012-Ohio-2789.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CATHERINE OYER JUDGES:
Hon. Patricia A. Delaney, P.J.
Appellant Hon. William B. Hoffman, J.
Hon. Sheila G. Farmer, J.
-vs-
Case No. 2011CA00229
KENNETH OYER
Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Family Court Division,
Case No. 2010 DR 00470
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: June 18, 2012
APPEARANCES:
For Appellant For Appellee
SUSAN J. LAX WENDY J. ROCKENFELDER
755 White Pond Dr., Suite 403 5502 Market Avenue North, Suite B
Akron, Ohio 44320 Canton, Ohio 44721
Stark County, Case No. 2011CA00229 2
Hoffman, J.
{¶1} Plaintiff-Appellant Catherine Oyer appeals the September 20, 2011
Judgment Entry of the Stark County Court of Common Pleas, Family Court Division,
denying her Motion for Relief from Judgment. Defendant-appellee is Kenneth Oyer.
STATEMENT OF THE CASE1
{¶2} Appellant filed a complaint for divorce in 2010. The parties reached a
settlement which was read into the record on December 13, 2010. Because of issues
regarding Appellant’s health insurance coverage, the trial court agreed to wait until May
of 2011, to enter a final judgment.
{¶3} Appellee’s counsel forwarded a proposed Entry to the trial court which had
not been approved by Appellant’s counsel. That proposed entry was approved by the
trial court and filed on March 10, 2011.
{¶4} On April 29, 2011, Appellant filed a Motion for Relief from Judgment/Oral
Argument Requested. Said motion was denied by Judgment Entry filed September 20,
2011. It is from that judgment entry Appellant prosecutes this appeal, assigning as
error:
{¶5} “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
FOR RELIEF FROM JUDGMENT ON THE BASIS OF A MISTAKE OF FACT, WHERE
APPELLANT PRESENTED SUFFICIENT EVIDENCE THAT THE FILED JUDGMENT
ENTRY DID NOT CONFORM TO THE TERMS OF THE SETTLEMENT, AS SET
FORTH DURING THE DECEMBER 10, 2010 TRIAL.”
1
A rendition of the facts is unnecessary for our disposition of this appeal.
Stark County, Case No. 2011CA00229 3
{¶6} In response to Appellant’s alleged error, Appellee asserts the assignment
of error should be overruled for two reasons; the first of which is because a motion to
vacate is not a substitute for a timely appeal.2 We agree.
{¶7} Civil R.60(B) is not available as a substitute for a timely appeal nor can the
rule be used to circumvent or extend the time requirements for an appeal. Rose
Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20. See also Fifth Third Mortgage,
Co. v. Fantine, 5th Dist. No. 11 CA 20, 2011-Ohio-4968, at ¶19. Appellant claims the
entry of divorce approved by the trial court did not accurately reflect the terms of the
parties’ in-court agreement as evidenced by the transcript of the December 13, 2010
hearing. We agree with Appellee, any alleged error or discrepancy would have been
apparent from that record and subject to review on direct appeal. Having failed to take
timely appeal from that entry, we dismiss the present appeal.
By: Hoffman, J.
Delaney, P.J. and
Farmer, J. concur s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
2
Given our agreement with Appellee’s first response, we find it unnecessary to discuss
his second response.
Stark County, Case No. 2011CA00229 4
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CATHERINE OYER :
:
Appellant :
:
-vs- : JUDGMENT ENTRY
:
KENNETH OYER :
:
Appellee : Case No. 2011CA00229
For the reason stated in our accompanying Opinion, this appeal is ordered
dismissed. Costs assessed to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER