Marietta Angel v. James Angel, 93-LW-0937

• Decision Date: 18 February 1993
• Docket Number: 92CA2071,93-LW-0937
• Parties: Marietta Angel, Plaintiff-Appellee v. James Angel, Sr., Defendant-Appellant Case
• Court: Ohio Court of Appeals

Marietta Angel, Plaintiff-Appellee v. James Angel, Sr., Defendant-Appellant

No. 92CA2071.

93-LW-0937 (4th)

Court of Appeals of Ohio, Fourth District Scioto

February 18, 1993

John R Stevenson, West Portsmouth, Ohio, for Appellant.

Rick L Faulkner, Wheelersburg, Ohio, for Appellee.

DECISION

Harsha J.

James Angel, Sr. appeals the judgment overruling his Civ.R. 60(B) motion for relief from a judgment which had granted a divorce to Marietta Angel, plaintiff-appellee.

Appellant assigns the following errors:

I. THE TRIAL COURT WAS IN ERROR IN REFUSING TO MAKE WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER A TIMELY REQUEST PURSUANT TO OHIO CIVIL RULE 52.

II. THE TRIAL COURT COMMITTED ERROR IN NOT GRANTING THE RULE 60(B) MOTION FOR RELIEF FROM JUDGMENT.

On October 9, 1990, appellee filed a complaint for divorce which alleged that appellant had been guilty of gross neglect of duty and extreme cruelty. A copy of the complaint was issued to appellant by certified mail and service was perfected on October 13, 1990. Appellant did not file an answer to the complaint although one was due on or about November 10, 1990. On March 23, 1991, appellee filed a request for a hearing on the divorce complaint. The trial court gave notice of a hearing to be held before a referee on June 19, 1991. Appellee attended the hearing, but appellant did not. Subsequently, the referee filed a report which determined that the "real property owned by the parties ha[d] been conveyed to the son, James Angel, Jr., with a life estate to each party." The referee recommended that appellee be granted a divorce from appellant, that she be awarded custody of the parties' minor child, and that appellant's life estate in the property owned by the parties be conveyed to appellee.

Since appellant filed no objections to the report, the trial court entered a judgment on July 2, 1991 which incorporated the referee's findings and recommendations. Appellant failed to file a timely appeal from the trial court's judgment entry. On October 17, 1991, appellant, through counsel, filed a motion for relief from judgment pursuant to Civ.R 60(B)(1), (3), and (5). Appellant contended that the trial court "had no jurisdiction" to transfer his life estate in property which he had inherited. Appellant further requested a hearing on the Civ.R. 60(B) motion. Attached to appellant's Civ.R. 60(B) motion was an affidavit in which he stated:

1) That the real estate transferred by the Judgment Entry of July 2, 1991 was inherited by him and him alone from John Morris Angel, Sr. pursuant to a Will filed January 30, 1980 in the Scioto County Probate Court.

2) That the parties had previously entered into a separation Agreement and divided their property leaving the real estate to him.

3) On June 19, 1991 he had a hearing before a Federal Judge on his Social Security claim and could not come to the divorce proceeding without prejudicing his social security benefits.

4) At the time of the hearing and until he received his Social security benefits he was indigent and could not afford counsel to represent him or obtain a continuance.

5) He at no time consented to his life estate being extinguished by the Court or that it be transferred to the Plaintiff, Marietta Angel.

Later, appellant filed a request for admissions pursuant to Civ.R. 36. Appellee did not respond to these requests. On April 17, 1992, the court held a hearing on appellant's Civ.R. 60(B) motion and allowed the parties' counsel to present oral argument. After the hearing, appellant filed a Civ.R. 52 request for written findings of fact and conclusions of law. The trial court ultimately entered a judgment overruling appellant's Civ.R. 60(B) motion, but did not issue written findings of fact and conclusions of law.

Initially, we consider appellant's second assignment of error which asserts that the trial court erred in not granting his Civ.R. 60(B) motion for relief from judgment.

Civ.R. 60(B) provides:

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) * * *; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) * * *; or (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (B) does not affect the finality of a judgment or suspend its operation.

The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules.

A motion for relief from judgment pursuant to Civ.R. 60(B) is addressed to the sound discretion of the trial court, and that court's ruling will not be disturbed on appeal absent a showing of an abuse of discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77; Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64, 66. An abuse of discretion involves more than an error of judgment; it connotes an attitude on the part of the court that is unreasonable, unconscionable, or arbitrary. Franklin Cty. Sheriff'S Dept. v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 506; Wilmington Steel Products. Inc. v. Cleve. Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122. When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138, citing Berk v. Matthews (1990), 53 Ohio St.3d 161, 169.

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. Rose Chevrolet, Inc. v. Adams (1988), 6 Ohio St.3d 17, 20, citing GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, paragraph two of the syllabus; see, also, Buckeye Fed. S. & L. Assn. v. Guirlinger (1991), 62 Ohio st.3d 312, 314. If any of these three requirements is not met, the motion should be overruled. Rose Chevrolet, supra, at 20, citing Svoboda v. Brunswick (1983), 6 Ohio St.3d 348, 351; Hopkins v. Quality Chevrolet, Inc. (May 19, 1992), Ross App. No. 1772, unreported, p. 3. Furthermore, if the movant files a motion for relief from judgment and it contains allegations of operative facts which would warrant relief under Civ.R. 60(B), the trial court should grant a hearing to take evidence and verify those facts before it rules on the motion. Coulson v. Coulson (1983), 5 Ohio St.3d 12, 16. In other words, the movant is entitled to an evidentiary hearing only where the Civ.R. 60(B) motion for relief from judgment and attached evidentiary material contain allegations of operative facts, which would warrant relief under Civ.R. 60(B). In the Matter of Shell (Oct. 2, 1992), Fairfield App. No. 12 CA 92, unreported, citing Twinsburg Banking Co. v. Rhea Constr. Co. (1983), 9 Ohio App.3d 39.

A preliminary issue, raised but not fully explored by the parties, concerns the evidence which was before the trial court in its determination of appellant's Civ.R. 60(B) motion. Appellant contends that the Civ.R. 60(B) evidence included both the attached affidavit and his subsequently filed Civ.R. 36 request for admissions. Appellant argues the requests were conclusively established when appellee failed to respond. See, e.g., National Mutual Ins. Co. v. McJunkin (May 3, 1990), Cuyahoga App. No. 58458, unreported (failure to respond to requested admissions causes the matters stated there to be admitted by default; no motion to deem matters admitted is necessary). Appellee asserts that only appellant's affidavit was properly before the trial court.

The allegation of operative facts required in order to both necessitate an evidentiary hearing and prevail must be of evidentiary quality similar to affidavits, depositions, answers to interrogatories, written admissions or written stipulations. See Society National Bank v. Robb (Sept. 20, 1989), Summit App. No. CA 14005, unreported, citing East Ohio Gas Co. v. Walker (1978), 59 Ohio App.2d 216. However, it is clear that the evidence establishing the operative facts must be obtained prior to filing the Civ.R. 60(B) motion for relief from judgment. Salem v. Salem (1988), 61 Ohio App.3d 243, 245 (instead of attempting to obtain supporting evidence prior to filing her motion for relief from judgment, appellant instead sought to obtain her supporting facts after filing the motion); Shell, supra. In sum, the supporting documentation should be made a part of the motion package by being served and filed with the motion for relief from judgment. 2 Klein, Browne and Murtaugh, Baldwin's Ohio Civil Practice (1988) 109, T 53.05 (B). Since appellant's request for admissions was filed approximately two and a half months following his Civ.R. 60(13) motion, the "deemed admissions" were not properly before the trial court.(fn1)

Appellant's Civ.R. 60(B) motion for relief from judgment was filed pursuant to (B)(1) (excusable neglect), (3) (fraud), and (5) (any other reason justifying relief from judgment). In support of his excusable neglect claim, appellant attached an affidavit which indicated that on the date of the hearing on appellee's divorce complaint he had an administrative hearing on a social security claim, he was indigent, and could not afford counsel to either represent him or obtain a continuance.

The determination of whether excusable or inexcusable neglect occurred, must of necessity, take into...