Davis v. Davis

[Cite as Davis v. Davis, 2016-Ohio-7790.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Joseph Davis, :
Plaintiff-Appellee, :
No. 15AP-1078
v. : (C.P.C. No. 08DR-2694)
Carmen Davis, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 17, 2016
On brief: Law Offices of Jefferson Liston, LLC, and
Jefferson Liston, for appellee. Argued: Jefferson Liston.
On brief: Favor Legal Services, and H. Macy Favor, Jr., for
appellant. Argued: H. Macy Favor, Jr.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations
HORTON, J.
{¶ 1} Defendant-appellant, Carmen Davis, appeals a decision of the Franklin
County Court of Common Pleas, Division of Domestic Relations, issued on October 28,
2015, denying her motion for relief from judgment pursuant to Civ.R. 60(B)(5). For the
following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On January 14, 2015, Carmen filed her amended motion for relief from
judgment pursuant to Civ.R. 60(B)(5) seeking modification to the divorce decree that was
entered on July 30, 2010, between herself and her ex-husband, plaintiff-appellee, Joseph
Davis ("Joe"). On August 10, 2010, the trial court filed a shared parenting plan, signed by
both Carmen and Joe.
No. 15AP-1078 2
{¶ 3} In her amended motion for relief from judgment, Carmen sought
modification to provisions in the original decree regarding spousal support, real
property/marital residence, pension/retirement plans, child support (duration and
amount), child transportation arrangements, medical coverage, and tax exemption.
{¶ 4} A hearing on the motion was set for July 7, 2015. On June 29, 2015, Joe
filed a motion to dismiss, seeking an order from the trial court to dismiss Carmen's
motion for relief from judgment. On July 14, 2015, Carmen filed the following motions: a
motion to compel; a motion in opposition to Joe's motion to dismiss; a motion in
opposition to Joe's motion to compel; and a motion to extend time to respond to Joe's
motion to sell the home. The trial court granted a continuance to respond to Joe's motion
to dismiss and the matter was later heard by the trial court on July 15, 2015.
{¶ 5} In an entry dated October 28, 2015, the trial court denied Carmen's motion
for relief from judgment. The trial court stated that although Carmen invoked the catch-
all provision of Civ.R. 60(B)(5), she had failed to state her claims for relief with
"specificity;" that her "claims are not supported by evidence, case law, or statute;" and
that she had "not proven that she has a meritorious defense or claim to present if relief is
granted or even that the motion is made within a reasonable time." (Jgmt. Entry at 3.)
The trial court pointed out that Carmen was essentially attempting to relitigate the terms
of her divorce five years after entering into it, and that "she was aware of her own financial
circumstances" when she negotiated the judgment entry decree of divorce. (Jgmt. Entry at
3.)
II. ASSIGNMENTS OF ERROR
{¶ 6} Appellant appeals, assigning the following errors for our review:
[I.] THE TRIAL COURT ABUSED ITS DISCRETION WHEN
IT DENIED DEFENDANT'S MOTION PURSUANT TO CIV.R.
60(B)(5) WITHOUT A HEARING AFTER IT INITIALLY
GRANTED ONE.
[II.] THE TRIAL COURT ERRED WHEN IT GRANTED
PLAINTIFF'S PROCEDURALLY DEFICIENT MOTION TO
DISMISS.
No. 15AP-1078 3
III. DISCUSSION
{¶ 7} In order to prevail on a motion brought pursuant to Civ.R. 6o(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. 6o(B)(1) through (5); and (3) the motion is made within a reasonable time, and,
where the grounds of relief are Civ.R. 6o(B)(1), (2) or (3), not more than one year after the
judgment, order or proceeding was entered or taken.' " Caron v. Manfressa, 1oth Dist.
No. 98AP-1399 (Sept. 23, 1999), quoting Argo Plastic Products Co. v. Cleveland, 15 Ohio
St.3d 389, 391 (1984), quoting GTE Automatic Elec. v. ARC Industries, 47 Ohio St.2d 146(1976), paragraph two of the syllabus.
{¶ 8} A motion for relief from judgment is addressed to the sound discretion of
the trial court, and a ruling will not be disturbed absent an 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).
{¶ 9} Turning to the merits of the Civ.R. 6o(B) motion, the trial court had a valid
reason for denying the motion.
{¶ 10} Carmen filed her motion for relief from judgment under Civ.R. 60(B)(5), the
"catch-all" provision of the rule. Unlike subsections (1) through (4), which authorize relief
from judgment for specific reasons such as mistake, excusable neglect, or newly
discovered evidence, the catch-all provision allows relief for "any other reason justifying
relief from the judgment" when a more specific reason does not apply. The catch-all
provision "reflect[s] the inherent power of a court to relieve a person from the unjust
operation of a judgment." Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 (1983),
paragraph one of the syllabus. "The grounds for invoking the rule [under the catch-all
provision] must be substantial, and relief may be granted only in unusual or extraordinary
circumstances." Daroczy v. Lantz, 10th Dist. No. 02AP-31, 2002-Ohio-5417, ¶ 39, citing
Adomeit v. Baltimore, 39 Ohio App.2d 97, 105 (8th Dist.1974).
{¶ 11} Here, the trial court did not abuse its discretion when it overruled Carmen's
motion. She presented no new claim or defense relevant to her original divorce
proceedings. Rather, she attempted to relitigate all the issues that had been previously
No. 15AP-1078 4
resolved in the original decree. Moreover, as the trial court noted, many of the financial
issues facing Carmen were within her knowledge prior to the divorce. These do not qualify
as unusual or extraordinary circumstances.
{¶ 12} Furthermore, Rule 13 of the Local Rules of the Franklin County Court of
Common Pleas, Division of Domestic Relations, states that any motion seeking relief
under Civ.R. 60(B) must include "a memorandum of fact and law and may include
affidavits, transcripts, depositions * * * and other relevant documentary materials." Here,
Carmen failed to even include an affidavit attesting to the changed circumstances she
describes in the memorandum. The memorandum itself cited none of the relevant legal
standards for granting relief under Civ.R. 60(B). Finally, as the trial court noted, the
motion came five years after the original divorce decree. For these reasons, the trial court
did not abuse its discretion when denying the motion.
{¶ 13} Nor was Carmen entitled to an evidentiary hearing on the motion:
A party who files a Civ.R. 60(B) motion for relief from
judgment is not automatically entitled to a hearing on the
motion. Instead, the movant bears the burden of
demonstrating that he or she is entitled to a hearing on the
motion. To warrant a hearing on a Civ.R. 60(B) motion, the
movant must allege operative facts that would warrant relief
under Civ.R. 60(B). Kay v. Marc Glassman, Inc., 76 Ohio
St.3d 18, 19, 1996 Ohio 430, 665 N.E.2d 1102 (1996).
Settonni v. Settonni, 8th Dist. No. 97784, 2012-Ohio-3084, ¶ 39.
{¶ 14} Carmen's second assignment of error argues that the trial court erred when
it granted Joe's "Motion to Dismiss." This assignment of error is rendered moot by
overruling her first assignment of error. The trial court's denial of Carmen's motion was
the only action that had a substantive effect on her rights. "Granting" the motion to
dismiss was redundant because the court had already denied Carmen's motion.
Furthermore, the "Motion to Dismiss" was, in reality, a memorandum in opposition to
Carmen's motion under Civ.R. 60(B). By asking the trial court to "dismiss" Carmen's
motion, it was only asking the trial court to take action on Carmen's Civ.R. 60(B) motion.
No. 15AP-1078 5
IV. DISPOSITION
{¶ 15} Having overruled Carmen's first assignment of error and rendered the
second assignment of error moot, we affirm the judgment of the Franklin County Court of
Common Pleas, Division of Domestic Relations.
Judgment affirmed.
DORRIAN, P.J. and SADLER, J., concur.
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