[Cite as Keen v. Keen, 2025-Ohio-5810.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
HEATHER KEEN, Case No. CT2025-0061
Plaintiff - Appellee Opinion & Judgment Entry
-vs- Appeal from the Domestic Relations Division of the Court of Common Pleas NATHEN S. KEEN, of Muskingum County, Case No. DA2023-0478 Defendant - Appellant Judgment: Affirmed
Date of Judgment: December 30, 2025
BEFORE: William B. Hoffman; Kevin W. Popham; David M. Gormley, Judges
APPEARANCES: Nathen S. Keen, St. Clairsville, Ohio, briefed the case on his own behalf as Defendant-Appellant.
Gormley, J.
{¶1} Defendant Nathen Keen argues in this appeal that the trial court erred by
denying his Civil Rule 60(B) motion requesting relief from the October 2023 judgment that
terminated his marriage. Keen also contends that the trial court lacked jurisdiction to
issue the divorce decree because — he says — he was not properly served with the initial
summons and complaint when the case was filed in 2023. For the reasons explained
below, we affirm the trial court’s judgment.
The Key Facts
{¶2} The marriage between Nathen and Heather Keen was terminated by an
October 2023 divorce decree. Nathen — who began serving a lengthy prison term
several months before Heather Keen filed the divorce complaint — was not represented by counsel in the divorce action, did not file an answer to the complaint, and did not
request to appear by video for any hearings. Nathen alleges that the attorney who
represented him in prior legal matters led him to believe that she would represent him in
the divorce action and would appear on his behalf at the October 16, 2023 divorce
hearing. Neither Nathen nor that attorney appeared at the hearing.
{¶3} The court awarded Heather the parties’ jointly owned residence and ordered
Nathen to execute a quit-claim deed releasing his interest in the property. Heather was
designated as the residential parent and legal custodian of their shared children, and
Nathen was not awarded any enforceable parenting time.
{¶4} Nathen did not timely appeal after the 2023 divorce decree was issued. Our
court denied in October 2024 Nathen’s motion for permission to file a delayed appeal,
and we denied, too, his subsequent motion to reconsider the denial of his first motion.
Following his unsuccessful attempts to file a tardy direct appeal, Nathen filed with the trial
court in April 2025 a Civil Rule 60(B) motion for relief from the divorce-decree judgment.
The trial court denied his motion without holding a hearing, and Nathen now appeals that
decision.
The Trial Court Did Not Err By Denying Keen’s Motion For Relief From Judgment
{¶5} Keen’s first, second, and third assignments of error all relate to the trial
court’s denial of his Civ.R. 60(B) motion for relief. Keen argues that the trial court erred
by dismissing his motion without a hearing, improperly viewed the motion as untimely,
and erroneously found that he had not stated a claim that might entitle him to relief.
{¶6} We review a trial court’s decision to deny a Civ.R. 60(B) motion for an abuse
of discretion. Maynard v. Scales, 2025-Ohio-5124, ¶ 15 (5th Dist.). An abuse of discretion is more than an error in law or judgment and implies that the court’s attitude
was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
Keen Failed to Demonstrate That He Had Grounds For Relief Under Civ.R. 60(B)
{¶7} A court may, upon motion, relieve a party 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 Civ.R. 59(B); (3) fraud (whether intrinsic
or extrinsic), misrepresentation, or other misconduct by 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. Civ.R. 60(B)(1)-(5). The motion must be made within a reasonable
time, and for relief based on (1), (2), or (3), not more than one year after the judgment,
order, or proceeding was entered or taken. Id.
{¶8} To prevail on his Civ.R. 60(B) motion, Keen must have demonstrated to the
trial court that he had a meritorious claim or defense to present if he were relieved from
the divorce decree, that he was entitled to relief under one of the grounds stated in Civ.R.
60(B)(1)-(5), and that the motion was made within a reasonable time, or, if his grounds
for relief were Civ.R. 60(B)(1), (2), or (3), not more than one year after the decree was
issued. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 150 (1976).
Keen’s failure to satisfy even one of those requirements warranted the trial court’s denial
of his motion. Hammons v. Hammons, 2025-Ohio-177, ¶ 15 (5th Dist.). {¶9} Keen, in his brief, asserts only that he was entitled to relief under Civ.R.
60(B)(1) and (5). Keen’s 60(B) motion was filed with the court on April 4, 2025, and that
motion sought relief from the October 16, 2023 divorce decree. Because Keen’s motion
was filed more than one year after the divorce decree was issued, Keen was not entitled
to seek relief under Civ.R. 60(B)(1). That leaves only Civ.R. 60(B)(5) for our analysis,
and “[t]he grounds for invoking Civil Rule 60(B)(5) should be substantial and only used
in extraordinary and unusual cases when the interests of justice warrant it.” Tarullo v.
Thompson, 2018-Ohio-3378, ¶ 21 (5th Dist.).
{¶10} Keen argues that he was entitled to relief because the decree was against
the plain language of Civ.R. 75(F), the decree failed to establish parental rights, Keen still
had personal belongings at the property awarded to Heather, and an attorney he believed
was representing him in the divorce proceedings provided what Keen describes as the
ineffective assistance of counsel.
{¶11} Ohio courts have repeatedly explained that Civ.R. 60(B) may not be used
as a substitute for a direct appeal. Doe v. Trumbull Cty. Children Serv. Bd., 28 Ohio St.3d
128, 131 (1986); Arbogast v. Werley, 2008-Ohio-1555, ¶ 10 (6th Dist.) (“A motion for
relief from judgment does not extend the time for appeal and an appeal from an order
denying relief under Civ.R. 60(B) does not bring up for review the judgment from which
relief is sought.”); Beyoglides v. Elmore, 2012-Ohio-3979, ¶ 17 (2d Dist.) (“when a party
merely repeats arguments that concern the merits of the case and that could have been
raised on appeal, relief under Civ.R. 60(B) is not available”). A direct appeal is
appropriate when the alleged defect of the judgment is apparent from the record, while a
Civ.R. 60(B) motion should be used to seek relief where the error cannot be demonstrated from the record. Deutsche Bank Trust Co. Americas v. Ziegler, 2015-Ohio-1586, ¶ 56
(2d Dist.).
{¶12} Keen, in raising arguments about the terms of the divorce decree,
impermissibly turned to a Civil Rule 60(B) motion as a substitute for a direct appeal. Any
alleged defect in the divorce decree must have been brought on a direct appeal, and
Keen may not now challenge the decree under the guise of a Civ.R. 60(B) motion. Keen’s
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[Cite as Keen v. Keen, 2025-Ohio-5810.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
HEATHER KEEN, Case No. CT2025-0061
Plaintiff - Appellee Opinion & Judgment Entry
-vs- Appeal from the Domestic Relations Division of the Court of Common Pleas NATHEN S. KEEN, of Muskingum County, Case No. DA2023-0478 Defendant - Appellant Judgment: Affirmed
Date of Judgment: December 30, 2025
BEFORE: William B. Hoffman; Kevin W. Popham; David M. Gormley, Judges
APPEARANCES: Nathen S. Keen, St. Clairsville, Ohio, briefed the case on his own behalf as Defendant-Appellant.
Gormley, J.
{¶1} Defendant Nathen Keen argues in this appeal that the trial court erred by
denying his Civil Rule 60(B) motion requesting relief from the October 2023 judgment that
terminated his marriage. Keen also contends that the trial court lacked jurisdiction to
issue the divorce decree because — he says — he was not properly served with the initial
summons and complaint when the case was filed in 2023. For the reasons explained
below, we affirm the trial court’s judgment.
The Key Facts
{¶2} The marriage between Nathen and Heather Keen was terminated by an
October 2023 divorce decree. Nathen — who began serving a lengthy prison term
several months before Heather Keen filed the divorce complaint — was not represented by counsel in the divorce action, did not file an answer to the complaint, and did not
request to appear by video for any hearings. Nathen alleges that the attorney who
represented him in prior legal matters led him to believe that she would represent him in
the divorce action and would appear on his behalf at the October 16, 2023 divorce
hearing. Neither Nathen nor that attorney appeared at the hearing.
{¶3} The court awarded Heather the parties’ jointly owned residence and ordered
Nathen to execute a quit-claim deed releasing his interest in the property. Heather was
designated as the residential parent and legal custodian of their shared children, and
Nathen was not awarded any enforceable parenting time.
{¶4} Nathen did not timely appeal after the 2023 divorce decree was issued. Our
court denied in October 2024 Nathen’s motion for permission to file a delayed appeal,
and we denied, too, his subsequent motion to reconsider the denial of his first motion.
Following his unsuccessful attempts to file a tardy direct appeal, Nathen filed with the trial
court in April 2025 a Civil Rule 60(B) motion for relief from the divorce-decree judgment.
The trial court denied his motion without holding a hearing, and Nathen now appeals that
decision.
The Trial Court Did Not Err By Denying Keen’s Motion For Relief From Judgment
{¶5} Keen’s first, second, and third assignments of error all relate to the trial
court’s denial of his Civ.R. 60(B) motion for relief. Keen argues that the trial court erred
by dismissing his motion without a hearing, improperly viewed the motion as untimely,
and erroneously found that he had not stated a claim that might entitle him to relief.
{¶6} We review a trial court’s decision to deny a Civ.R. 60(B) motion for an abuse
of discretion. Maynard v. Scales, 2025-Ohio-5124, ¶ 15 (5th Dist.). An abuse of discretion is more than an error in law or judgment and implies that the court’s attitude
was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983).
Keen Failed to Demonstrate That He Had Grounds For Relief Under Civ.R. 60(B)
{¶7} A court may, upon motion, relieve a party 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 Civ.R. 59(B); (3) fraud (whether intrinsic
or extrinsic), misrepresentation, or other misconduct by 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. Civ.R. 60(B)(1)-(5). The motion must be made within a reasonable
time, and for relief based on (1), (2), or (3), not more than one year after the judgment,
order, or proceeding was entered or taken. Id.
{¶8} To prevail on his Civ.R. 60(B) motion, Keen must have demonstrated to the
trial court that he had a meritorious claim or defense to present if he were relieved from
the divorce decree, that he was entitled to relief under one of the grounds stated in Civ.R.
60(B)(1)-(5), and that the motion was made within a reasonable time, or, if his grounds
for relief were Civ.R. 60(B)(1), (2), or (3), not more than one year after the decree was
issued. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 150 (1976).
Keen’s failure to satisfy even one of those requirements warranted the trial court’s denial
of his motion. Hammons v. Hammons, 2025-Ohio-177, ¶ 15 (5th Dist.). {¶9} Keen, in his brief, asserts only that he was entitled to relief under Civ.R.
60(B)(1) and (5). Keen’s 60(B) motion was filed with the court on April 4, 2025, and that
motion sought relief from the October 16, 2023 divorce decree. Because Keen’s motion
was filed more than one year after the divorce decree was issued, Keen was not entitled
to seek relief under Civ.R. 60(B)(1). That leaves only Civ.R. 60(B)(5) for our analysis,
and “[t]he grounds for invoking Civil Rule 60(B)(5) should be substantial and only used
in extraordinary and unusual cases when the interests of justice warrant it.” Tarullo v.
Thompson, 2018-Ohio-3378, ¶ 21 (5th Dist.).
{¶10} Keen argues that he was entitled to relief because the decree was against
the plain language of Civ.R. 75(F), the decree failed to establish parental rights, Keen still
had personal belongings at the property awarded to Heather, and an attorney he believed
was representing him in the divorce proceedings provided what Keen describes as the
ineffective assistance of counsel.
{¶11} Ohio courts have repeatedly explained that Civ.R. 60(B) may not be used
as a substitute for a direct appeal. Doe v. Trumbull Cty. Children Serv. Bd., 28 Ohio St.3d
128, 131 (1986); Arbogast v. Werley, 2008-Ohio-1555, ¶ 10 (6th Dist.) (“A motion for
relief from judgment does not extend the time for appeal and an appeal from an order
denying relief under Civ.R. 60(B) does not bring up for review the judgment from which
relief is sought.”); Beyoglides v. Elmore, 2012-Ohio-3979, ¶ 17 (2d Dist.) (“when a party
merely repeats arguments that concern the merits of the case and that could have been
raised on appeal, relief under Civ.R. 60(B) is not available”). A direct appeal is
appropriate when the alleged defect of the judgment is apparent from the record, while a
Civ.R. 60(B) motion should be used to seek relief where the error cannot be demonstrated from the record. Deutsche Bank Trust Co. Americas v. Ziegler, 2015-Ohio-1586, ¶ 56
(2d Dist.).
{¶12} Keen, in raising arguments about the terms of the divorce decree,
impermissibly turned to a Civil Rule 60(B) motion as a substitute for a direct appeal. Any
alleged defect in the divorce decree must have been brought on a direct appeal, and
Keen may not now challenge the decree under the guise of a Civ.R. 60(B) motion. Keen’s
arguments about the division of the marital property, the location of his personal property,
and the allocation of parental rights, therefore, do not constitute a proper basis for relief
under a Civ.R. 60(B) motion.
{¶13} Keen is also not entitled to Civ.R. 60(B)(5) relief for a claim of ineffective
assistance of counsel. No constitutional right to representation exists in a civil case
between individual litigants. Roth v. Roth, 65 Ohio App.3d 768, 776 (6th Dist. 1989).
Further, our court has long held that the “remedy for alleged attorney incompetence or
misconduct is an action for malpractice, and Civil Rule 60(B)(5) is not to be used as a
substitute for a malpractice action.” Tarullo, 2018-Ohio-3378, at ¶ 27 (5th Dist.), citing
Jenkins v. Jenkins, 2010-Ohio-1184, ¶ 17 (5th Dist.); WM Specialty Mtge. v. Mack, 2009-
Ohio-2590, ¶ 32 (5th Dist.) (finding that the inaction of appellant’s trial counsel in failing
to respond to a motion for summary judgment or raise a contract defense was not the
“extraordinary circumstance” to which Civ.R. 60(B)(5) may apply and that the appropriate
remedy was “against the attorney in a suit for malpractice”). See also Roth at 776 (“any
complaint of ineffective assistance of counsel may only be resolved in a malpractice
action”). {¶14} Because Keen failed to demonstrate that he had grounds for relief under
Civ.R. 60(B)(5), we find it unnecessary to conduct an analysis of that motion’s timeliness
and whether Keen presented a meritorious claim or defense. Keen’s first assignment of
error is overruled.
{¶15} As for Keen’s allegation that the trial court abused its discretion by denying
his motion because it was filed roughly 18 months after the October 2023 divorce decree
was issued, Keen misunderstands that portion of the trial court’s entry. The trial court
noted that Keen was attempting in his motion to introduce evidence that should have been
introduced at the October 2023 divorce hearing. In our view, the trial court seemed to be
stating that even if it viewed that portion of Keen’s motion as a request for a new trial
based on newly discovered evidence, Keen would not have been entitled to that relief,
either. The court reasoned that many months had passed since the decree was issued,
and Keen’s evidence was “clearly available and known” to him when the divorce hearing
was held. Keen’s second assignment of error is overruled.
Keen Was Not Entitled to a Hearing on His 60(B) Motion
{¶16} Keen argues in his third assignment of error that the trial court erred by
denying his motion without first holding an evidentiary hearing. We disagree.
{¶17} Keen was entitled to an evidentiary hearing before the denial of his motion
“only if the motion or supportive affidavits contain[ed] allegations of operative facts which
would warrant relief under Civ.R. 60(B).” Boster v. C&M Servs., 93 Ohio App.3d 523, 526
(10th Dist. 1994) (emphasis in original); Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18,
19 (1996) (“the trial court abuses its discretion in denying a hearing where grounds for
relief from judgment are sufficiently alleged and are supported with evidence which would warrant relief from judgment”). Though Keen was not required to support his motion with
evidentiary materials, he must have done more than simply make bare allegations that
he was entitled to relief. Monaco v. Monaco, 2023-Ohio-1869, ¶ 30 (5th Dist.).
{¶18} The single affidavit that Keen executed and attached to his motion did not
set forth any operative facts that would entitle him to relief under Civ.R. 60(B). As
explained above, Keen did not have, nor did his affidavit set forth, sufficient grounds for
relief under Civ.R. 60(B)(5). Keen’s affidavit — which merely repeats the legal arguments
that he made in his Civ.R. 60(B) motion — mainly attacked the terms of the divorce decree
and detailed his grievances regarding his conviction in a criminal case that, in our view,
has no bearing on the divorce case underlying this appeal.
{¶19} The trial court did not abuse its discretion by denying Keen’s motion without
first holding an evidentiary hearing, and Keen’s third assignment of error is overruled.
Keen’s Argument Regarding Improper Service Is Not Properly Before Our Court
{¶20} Keen argues in his final assignment of error that the divorce-decree
judgment is void because he did not receive proper service of the complaint and
summons.
{¶21} Keen did not make an argument in his Civ.R. 60(B) motion regarding
improper service, and it is well-established that “‘a party cannot raise any new issues or
legal theories for the first time on appeal.’” Walcutt v. Greer, 2024-Ohio-2094, ¶ 21 (5th
Dist.), quoting Carrico v. Drake Constr., 2006-Ohio-3138, ¶ 37 (5th Dist.); see also
Bracken v. Hunter, 2003-Ohio-5949, ¶ 8 (10th Dist.) (“defendants' argument regarding
service of process may not be raised for the first time on appeal”). Keen’s fourth
assignment of error is overruled. {¶22} For the reasons explained above, the judgment of the Domestic Relations
Division of the Muskingum County Court of Common Pleas is affirmed. Costs are to be
paid by Appellant Nathen Keen.
By: Gormley, J.;
Hoffman, P.J. and
Popham, J. concur.