Salem v. Salem
| Decision Date | 21 December 1988 |
| Docket Number | No. 13712,13712 |
| Citation | 61 Ohio App.3d 243,572 N.E.2d 726 |
| Parties | SALEM, Appellant, v. SALEM, Appellee. |
| Court | Ohio Court of Appeals |
Herbert Palkovitz, Cleveland, for appellant.
George A. Clark and Richard E. Guster, Akron, for appellee.
Shulamith Salem, plaintiff-appellant, and Samuel Salem, defendant-appellee, negotiated and entered into a separation agreement. Both parties were represented by counsel throughout the negotiations, which were substantial. The trial court found that this agreement was fair, just and equitable and, thereafter, incorporated that agreement into its judgment of divorce, journalized on November 20, 1985.
On May 9, 1988, appellant filed a motion requesting relief from the 1985 judgment under Civ.R. 60(B)(5). The motion was accompanied by a request for an evidentiary hearing. On June 2, 1988, the appellant filed a notice to take the deposition of appellee.
Appellee filed a motion in opposition to the appellant's Civ.R. 60(B) motion, accompanied by an affidavit and supporting documents, which described in detail the give and take of the 1985 negotiations. Without holding a hearing, the trial court denied the appellant's Civ.R. 60(B) motion on June 3, 1988. The appellant's notice to take the deposition of the appellee was not addressed.
The appellant argues that she was entitled to both an evidentiary hearing on her motion for relief from judgment and an opportunity to take the deposition of the appellee in order to obtain the supporting evidence for the motion. These contentions are not well-taken.
Rather than attempting to obtain supporting evidence prior to the filing of her motion for relief, either by way of an action for discovery pursuant to R.C. 2317.48 or otherwise, the appellant instead sought to obtain her supporting facts after the filing of the motion. Under Civ.R. 60(B), the movant is entitled to an evidentiary hearing only where the motion and attached affidavits contain allegations of operative facts which would warrant relief under Civ.R. 60(B). See Twinsburg Banking Co. v. Rhea Constr. Co. (1983), 9 Ohio App.3d 39, 9 OBR 41, 458 N.E.2d 440, and Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 68 O.O.2d 251, 316 N.E.2d 469. Absent the necessary operative facts, a hearing is not required and the trial court, as here, may proceed to rule on the motion. There is no requirement that, once a motion for relief is filed, the trial court must delay ruling thereon until the movant has an opportunity to discover evidence which might support the motion for relief.
Appellant's motion to vacate the 1985 judgment was...
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