Monaco v. Monaco

[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