[Cite as Stevens v. Stevens,
2016-Ohio-7925.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
SOPHIA STEVENS : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellant : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 16-CA-17
ROBERT STEVENS :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court
of Common Pleas, Domestic Relations
Division, Case No. 2014 DR 00048
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 23, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JASON DONNELL ANGELA SEIMER
118 S. Pearl Street 437 N. Broad Street
Lancaster, OH 43130 Lancaster, OH 43130
[Cite as Stevens v. Stevens, 2016-Ohio-7925.]
Gwin, P.J.
{¶1} Appellant appeals the April 20, 2016 judgment entry of the Fairfield County
Court of Common Pleas, Domestic Relations Division, denying her Civil Rule 60(B)
motion to vacate.
Facts & Procedural History
{¶2} Appellant Sophia Stevens and appellee Robert Stevens were married on
November 21, 1992. The parties had two children during the marriage, M.S., born April
9, 2000 and H.S., born December 5, 2003. On February 5, 2014, appellant filed a
complaint for divorce against appellee.
{¶3} On July 13, 2015, the parties filed a handwritten memorandum judgment
entry. The memorandum entry provides it will be filed, but not journalized, and that the
attorney of record shall prepare a final judgment entry to be filed with the court in
accordance with the local rules. With regards to child support, the handwritten judgment
entry provides that “Father shall be obligated to pay child support to be calculated
pursuant to using the parties’ documented current incomes, per attached worksheet.”
The handwritten memorandum judgment entry did not include a provision with regards to
child support arrearages.
{¶4} On September 1, 2015, an agreed judgment entry and decree of divorce
was filed and journalized. The judgment entry was signed by appellant, appellee,
appellant’s attorney, appellee’s attorney, and the trial court judge. As to child support,
the agreed judgment entry and decree of divorce provides that appellee “shall pay child
support pursuant to the attached child support worksheet” and “the above child support
Fairfield County, Case No. 16-CA-17 3
amount agreed upon by the parties was computed in accordance with Chapter 3119 of
the Ohio Revised Code. A copy of the Child Support Worksheet is attached.”
{¶5} Appellant filed a motion to vacate pursuant to Civil Rule 60(A) and/or Civil
Rule 60(B). In her motion, appellant alleged that appellee was supposed to pay $3,240.17
in child support arrearages and this was inadvertently omitted from both the handwritten
memorandum journal entry and the agreed journal entry/decree of divorce. The trial court
issued a notice that it set her motion for a non-oral hearing.
{¶6} Appellant filed a supplemental memorandum in support of her motion on
April 12, 2016. Attached to the supplemental memorandum were the following: Exhibit
A, a copy of the agreed journal entry and decree of divorce; Exhibit B, a copy of the
Fairfield County Child Support Enforcement Agency financial transaction history for the
period of January 1, 2014 through July 9, 2015 showing an unpaid balance of $3,240.17;
and Exhibit C, a copy of the handwritten memorandum journal entry. In the supplemental
memorandum, appellant argues she has a meritorious defense in that she made
compromises during negotiations in exchange for appellee paying the child support
arrearages, including: agreeing to waive spousal support, relinquishing rights in the
Millfield property, allowing appellee to claim M.S. as a dependent every other year for tax
purposes, and allowing appellee to retain rent from the marital property.
{¶7} Appellee filed a memorandum contra to appellant’s motion on April 13,
2016, and argued there was no intent by appellee to preserve the arrears, as indicated
by both the memorandum journal entry and the agreed journal entry/decree of divorce.
Further, that both parties made compromises in negotiations and such compromises were
not specifically related to the arrearages.
Fairfield County, Case No. 16-CA-17 4
{¶8} The trial court issued a judgment entry denying appellant’s motion on April
20, 2016. The trial court first found the omission was not a clerical mistake and would be
a substantive change; thus, it was not proper to correct the entry pursuant to Civil Rule
60(A). As to Civil Rule 60(B)(1), the trial court found appellant did not present operative
facts to warrant a grant of 60(B) motion on the basis of an alleged mistake or
inadvertence. The trial court stated unsworn allegations alone are not sufficient. Further,
that mere carelessness on a litigant’s part is not sufficient to rise to the level of mistake,
inadvertence, and/or excusable neglect.
{¶9} Appellant appeals the April 20, 2016 judgment entry of the Fairfield County
Court of Common Pleas, Domestic Relations Division, and assigns the following as error:
{¶10} “I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING APPELLANT’S RULE 60(B) MOTION BEFORE HOLDING AN EVIDENTIARY
HEARING.”
I.
{¶11} The decision whether to grant a motion for relief from judgment under Civ.R.
60(B) lies within the trial court’s sound discretion. Griffey v. Ragan, 33 Ohio St.3d 75,
514 N.E.2d 1122 (1987). In order to find an abuse of discretion, we must determine the
trial court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore,
5 Ohio St.3d 217,
450 N.E.2d 1140 (1983).
{¶12} Civil Rule 60(B) provides that “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: (1) mistake, inadvertence, surprise or excusable
neglect ….” A party seeking relief from judgment pursuant to Civil Rule 60(B) must
Fairfield County, Case No. 16-CA-17 5
show: (1) a meritorious defense or claim to present if relief is granted; (2) entitlement to
relief under one of the grounds set forth in Civ.R. 60(B)(1)-(5); and (3) the motion must
be timely filed. GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146,
351 N.E.2d 113 (1976). A failure to establish any one of these three requirements will
cause the motion to be overruled. Argo Plastic Prod. Co. v. Cleveland,
15 Ohio St.3d
389,
474 N.E.2d 328 (1984).
{¶13} In her assignment of error, appellant first contends the trial court abused its
discretion in not granting her motion pursuant to Civ.R. 60(B)(1) for excusable neglect.
In her motion for relief, appellant argues the failure to include the provision for appellee
to pay her child support arrears was the result of “mistake, inadvertence, surprise, or
excusable neglect” as such provision was “lost in negotiation.” To determine whether
neglect is “excusable” under Civ.R. 60(B)(1), a court must consider all the surrounding
facts and circumstances. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17,
520 N.E.2d
564 (1988).
{¶14} Excusable neglect has been further defined as some action “not in
consequence of the party’s own carelessness, inattention, or willful disregard of the
process of the court, but in consequence of some unexpected or unavoidable hindrance
or accident.” Maggiore v. Barensfeld, 5th Dist. Stark Nos. 201CA00180, 2011CA00230,
2012-Ohio-2909. It is well settled that mere carelessness on a litigant’s part, or on the
part of his or her attorney, is not sufficient to rise to the level of mistake, inadvertence,
surprise, or excusable neglect. Muskingum Watershed Conservatory District v. Kellar,
5th Dist. Tuscarawas No. 2011AP020009,
2011-Ohio-6889; Blaney v. Kerrigan, 5th Dist.
Fairfield No. 12-CA-86,
1986 WL 8646 (Aug. 4, 1986). “Excusable neglect is not present
Fairfield County, Case No. 16-CA-17 6
if the party seeking relief could have prevented the circumstances from occurring.”
Maggiore v. Barensfeld, 5th Dist. Stark Nos. 201CA00180, 2011CA00230, 2012-Ohio-
2909, citing Porter, Wright, Morris & Arthur, LLP v. Frutta Del Mondo, Ltd., 10th Dist.
Franklin No. 08AP-69,
2008-Ohio-3567.
{¶15} In this case, we find the trial court did not abuse its discretion in finding no
excusable neglect under these facts and circumstances. The failure to include the
provision with regards to the payment of child support arrears was not the consequence
of some unexpected or avoidable hindrance or accident. Rather, appellant could have
controlled or guarded against the event by making sure the child support arrearage
provision was contained in the handwritten memorandum and/or in the agreed judgment
entry/decree of divorce that both she and her attorney signed.
{¶16} In her assignment of error, appellant next argues the trial court erred in
failing to hold an evidentiary hearing on her motion to judge the credibility of appellant
and appellee. We disagree.
{¶17} The standard for when an evidentiary hearing on a Civil Rule 60(B) motion
is necessary is set forth in Cogswell v. Cardio Clinic of Stark County, Inc., 5th Dist. Stark
No. CA-8553, 1991 WL 242070 (Oct. 21, 1991). In Cogswell, this Court held under Civil
Rule 60(B) that a hearing is not required unless there exist issues supported by
evidentiary quality affidavits.
Id. A trial court must hold an evidentiary hearing when the
motion and supporting evidence contain sufficient allegations of operative facts, which
would support a meritorious defense to the judgment. Id.; Capital One Bank (USA), N.A.
v. King, 5th Dist. Stark No. 2014CA00232,
2015-Ohio-3600.
Fairfield County, Case No. 16-CA-17 7
{¶18} In this case, in her brief attached to her motion for relief and in her
supplemental memorandum, appellant disputed the amount of child support appellee
owed her, arguing that both the handwritten agreement and the final judgment entry were
supposed to include a provision in which appellee was to pay appellant for child support
arrearages in the amount of $3,240.17. This is a dispute of fact. Appellant did not attach
evidentiary quality affidavits to her motion for relief from judgment to support her dispute
of fact as she did not file any affidavits in support of her motion. Accordingly, we find the
trial court did not err in not holding an evidentiary hearing, as there were no supportive
affidavits containing allegations of operative fact that support a meritorious defense
entitling appellant to an evidentiary hearing. Chase Home Finance, LLC v. Lindenmayer,
5th Dist. Licking No. 15-CA-32, 016-Ohio-1202; Capital One Bank (USA), N.A. v. King,
5th Dist. Stark No. 2014CA00232, 2015-Ohio-3600. As this Court has previously noted,
“unsworn allegations of operative facts contained in a motion for relief from judgment filed
under Civ.R. 60(B) or in a brief attached to the motion are not sufficient evidence upon
which to grant a motion to vacate judgment.” Blaney v. Kerrigan, 5th Dist. Fairfield No.
12-CA-86,
1986 WL 8646 (Aug. 4. 1986), quoting East Ohio Gas v. Walker,
59 Ohio
App.2d 216,
394 N.E.2d 348 (8th Dist. 1978).
{¶19} Appellant also contends in her brief that the trial court abused its discretion
in denying the motion because she alleged a meritorious defense in her motion to vacate.
Appellant argues she made several compromises during the negotiations in exchange for
appellee’s obligation to pay the arrearages, including agreeing to waive child support,
relinquishing her rights in the Millfield property, allowing appellee to claim the minor child
Fairfield County, Case No. 16-CA-17 8
as a dependent every other year for tax purposes, and allowing appellee to retain the rent
from the marital property.
{¶20} The denial of a hearing and the presentation of a meritorious defense go
hand in hand. Chase Home Finance, LLC v. Lindenmayer, 5th Dist. Licking No. 15-CA-
32, 016-Ohio-1202. As detailed above, the motion and supporting evidence did not
contain sufficient allegations of operative facts to support a meritorious defense to the
judgment. See Wells Fargo Bank v. Grutsch, 5th Dist. Delaware Nos. 14 CAE 1000067,
15 CAE 050041, 2015-Ohio-4721. Further, while the provisions appellant cites are
included in both the handwritten memorandum journal entry and the agreed journal
entry/decree of divorce, there is no indication in the record or in either document that
these provisions were included in exchange for appellee’s payment of child support
arrearages.
Fairfield County, Case No. 16-CA-17 9
{¶21} Based on the foregoing, we find the trial court did not abuse its discretion in
denying appellant’s motion to vacate and/or in failing to hold an evidentiary hearing.
Appellant makes no showing by way of affidavit that excusable neglect existed, or that
she has a meritorious defense to present if relief is granted. Appellant’s assignment of
error is overruled and the April 20, 2016 judgment entry of the Fairfield County Court of
Common Pleas, Domestic Relations Division, is affirmed.
By Gwin, P.J.,
Wise, J., and
Baldwin, J., concur
