David A. Atchison v. Betty S. Atchison
| Decision Date | 29 June 2001 |
| Docket Number | 00CA2727,01-LW-2742 |
| Citation | 2001 Ohio 2519 |
| Parties | DAVID A. ATCHISON, Plaintiff-Appellee v. BETTY S. ATCHISON, Defendant-Appellant Case |
| Court | Ohio Court of Appeals |
COUNSEL FOR APPELLANT: MARCIA I. SHEDROFF[1], 8055 Hayport Road CB02-13, Wheelersburg, Ohio 45694
COUNSEL FOR APPELLEE: CATHERINE S. HEID, 116 Washington Boulevard West Portsmouth, Ohio 45663
This is an appeal from the decision of the Scioto County Court of Common Pleas, Domestic Relations Division, which denied Defendant-Appellant Betty S. Atchison's Civ.R. 60(B) motion for relief from judgment.
Appellant argues that the lower court abused its discretion in denying appellant's motion for relief from judgment by overruling appellant's objections to the magistrate's decision and by failing to grant appellant an evidentiary hearing. We find this argument to be without merit and affirm the decision of the trial court.
Our review of the record reveals the following facts pertinent to the instant appeal.
On December 19, 1999, the Scioto County Court of Common Pleas, Domestic Relations Division, issued a divorce decree, granting the divorce of Defendant-Appellant Betty S. Atchison and Plaintiff-Appellee David A. Atchison. The divorce decree stated, inter alia, that "there is one *** minor child born as issue of [the] marriage, *** Christina Kay Atchison, [born June 5, 1998]." We note that it is uncontested that, at the time the lower court issued its divorce decree, appellant was pregnant with a second child whose father was a man other than appellee. The lower court awarded custody of Christina to appellant, ordered appellee to pay child support for her, and granted appellee visitation with the child.
On February 17, 2000, appellee filed two motions: a motion for contempt of visitation, and a motion for modification of custody. Appellee contended that appellant had failed to comply with the court's order for visitation. Thus, appellee maintained, the court should modify its custody order and designate him the residential parent of Christina. Appellee requested a hearing on these motions.
On March 16, 2000, appellant filed a motion, pursuant to Civ.R. 60(B), for relief from judgment. In the memorandum supporting her motion, appellant sought relief from two sections of the divorce decree. First, appellant contested the section that found Christina to be born as issue of the marriage. Her basis for this challenge was as follows.
[F]or weeks prior to the conception of [Christina], the parties were separated and had no sexual relations. [Appellant] further states that during said period of time, she did have sexual relations with another man, whom she believes is the natural father of Christina ***. Moreover, [she] states that prior to the final hearing in the divorce she informed the attorney who represented her *** of these facts *** but that the attorney erroneously informed her that because the child was born during the marriage she had no choice but to name [appellee] as the father.
Second, appellant sought relief from the court's order awarding any parental rights to appellee. Her basis for this challenge was as follows.
[T]he finding of the [trial] court is a mistake *** in that it is no longer equitable that *** the divorce decree should have prospective application; and *** that the best interests of the child will be served by establishing the parent-child relationship with her natural father, and in that her previous counsel's advice and conduct of her case rose to the level of gross neglect and abandonment of representation.
This motion was supported by an affidavit of appellant wherein she attested that the facts presented in the motion were true. Appellant also requested an evidentiary hearing on this motion.
On April 6, 2000, without holding an evidentiary hearing, the magistrate for the trial court denied appellant's motion for relief from judgment:
No allegation of fraud is made, rather, [appellant] seeks to place blame on her attorney during the divorce. Yet, no affidavit [or any other evidence] is offered in support of said claim, only bare allegations by counsel *** in the Motion. ***. Considering the plethora of caselaw and the simple fact that [appellant] had the opportunity to challenge paternity of the child prior to the divorce and in fact did challenge and establish that [appellee] was not the father of the child she was expecting at the time of the divorce, the Court FINDS that the parentage determination in this matter is res judicata and will not be relitigated between [appellee] and [appellant].
On April 19, 2000, appellant filed objections to the magistrate's April 6, 2000 decision. This document is virtually identical to appellant's brief filed with this Court.
On May 30, 2000, the lower court entered a judgment entry overruling appellant's April 19, 2000 objections to the magistrate's decision.
On June 29, 2000, the trial court filed a nunc pro tunc judgment entry clarifying that the overruling of appellant's April 19, 2000 objections to the magistrate's decision was a final appealable order pursuant to R.C. 2505.02. The lower court stated that "there is no just reason for delay pursuant to Civ.R. 54(B)."[2]
Appellant filed a timely notice of appeal from the trial court's May 30, 2000 judgment entry. We again note that appellant's brief to this Court is virtually identical to the objections filed by appellant with the lower court on April 19, 2000.
THE LOWER COURT ABUSED ITS DISCRETION BY OVERRULING APPELLANT'S OBJECTIONS TO THE MAGISTRATE'S DECISION BECAUSE THE MAGISTRATE'S DECISION WAS ERRONEOUS, AS IT RELATED TO BOTH ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW, REGARDING THE QUESTION OF WHETHER APPELLANT FILED AN AFFIDAVIT IN SUPPORT OF HER MOTION FOR RELIEF FROM JUDGMENT AND WHETHER SUCH AN AFFIDAVIT IS NECESSARY TO WARRANT AN ORAL HEARING ON SAID MOTION.
THE LOWER COURT ABUSED ITS DISCRETION BY OVERRULING APPELLANT'S OBJECTIONS TO THE MAGISTRATE'S DECISION BECAUSE THE MAGISTRATE'S DECISION WAS ERRONEOUS IN THAT IT CONCLUDED THAT DEFENDANT-APPELLANT'S MOTION FOR RELIEF FROM JUDGMENT WAS BARRED BY RES JUDICATA.
THE LOWER COURT ABUSED ITS DISCRETION IN OVERRULING THE APPELLANT'S OBJECTIONS TO THE MAGISTRATE'S DECISION BECAUSE THE MAGISTRATE'S DECISION WAS ERRONEOUS IN THAT IT WOULD REQUIRE AN ALLEGATION OF FRAUD.
THE LOWER COURT ABUSED ITS DISCRETION BY OVERRULING APPELLANT'S OBJECTIONS TO THE MAGISTRATE'S DECISION WAS ERRONEOUS [sic] IN THAT IT WOULD REQUIRE DEFENDANT-APPELLANT TO PRODUCE EVIDENCE TO PROVE HER ALLEGATIONS IN ORDER TO OBTAIN A HEARING ON HER MOTION FOR RELIEF FROM JUDGMENT.
THE LOWER COURT ABUSED ITS DISCRETION IN OVERRULING APPELLANT'S ABJECTIONS [sic] TO THE MAGISTRATE'S DECISION BECAUSE THE MAGISTRATE'S DECISION WAS ERRONEOUS IN ITS FINDING [sic] OF FACT AND CONCLUSIONS OF LAW THAT APPELLANT WAS NOT ENTITLED TO AN EVIDENTIARY HEARING ON HER MOTION FOR RELIEF FROM JUDGMENT.
We will begin with a discussion of the proper application of Civ.R. 60(B) in matters such as the case sub judice. We will then turn to appellant's specific arguments set out in her sole assignment of error and its five subparts.
We begin our analysis by discussing Civ.R. 60(B). This rule, in relevant part, provides the following.
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; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the judgment. ***.
Appellant argues that her motion should have been granted based on three sections of Civ.R. 60(B): Section (1), that there was "mistake, inadvertence, surprise or excusable neglect"; Section (4), that it is "no longer equitable that the judgment should have prospective application"; and Section (5), the residual clause, for "any other reason justifying relief from the judgment." Civ.R. 60(B).
A Civ.R. 60(B) motion for relief from judgment is addressed to the sound discretion of the trial court. Thus, a reviewing court should not reverse the ruling of a trial court on a Civ.R. 60(B) motion absent an abuse of discretion. See Dunkle v. Dunkle (1999), 135 Ohio App.3d 669, 735 N.E.2d 469; accord Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 520 N.E.2d 564.
The term "abuse of discretion" has been defined by the Supreme Court of Ohio as "more than an error of law or of judgment; it connotes an attitude on the part of the court that is unreasonable, unconscionable or arbitrary." Franklin Cty. Sheriff's Dept. v. Serb (1992), 63 Ohio St.3d 498, 506, 589 N.E.2d 24, 30.
In evaluating the discretion of a lower court, a reviewing court must be circumspect. The fact that the reviewing court might reach a different conclusion than did the...
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...is not available to challenge a judgment based on late-discovered genetic test results. She also cited Atchison v. Atchison , 4th Dist. Scioto No. 00CA2727, 2001 WL 812804 (June 29, 2001), where the Fourth District applied Guthrie in concluding that (B)(5) does not apply where a more specif......