[Cite as Mosier v. Mosier, 2013-Ohio-3024.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
DONNA E. MOSIER JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 12CA101 MICHAEL L. MOSIER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Domestic Relations Division Case No. 01-D-624
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 11, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
THOMAS L. COLE HOWARD C. WHITCOMB, III. Weldon, Huston, & Keyser, L.L.P. 127 West Perry Street, Suite 105 76 N. Mulberry Street Port Clinton, OH 43452 Mansfield, OH 44902 Richland County, Case No. 12CA101 2
Hoffman, P.J.
{¶1} Defendant-appellant Michael L. Mosier appeals the September 10, 2012
Judgment Entry entered by the Richland County Court of Common Pleas, Domestic
Relations Division, which overruled his objections to the magistrate’s June 20, 2012
decision, and approved and adopted the decision with the exception of the social
security offset as the order of the court. Plaintiff-appellee is Donna E. Mosier, nka
Eaton.
STATEMENT OF THE CASE AND FACTS
{¶2} The parties were divorced via Judgment Entry/Decree of Divorce filed
March 6, 2003. As part of the divorce, the trial court awarded Appellee:
Fifty percent (50%) of the coverture portion of [Appellant’s] Air
Force and Ohio National Guard Retirement Benefits vested as of
December 31, 2002. The appropriate Social Security offset to be
calculated by Pension Evaluators and the Qualified Domestic Relations
Order to effect said award to be prepared by Pension Evaluators with the
cost to be equally divided between [Appellee and Appellant]. The
Qualified Order to contain the appropriate survivorship benefits as to that
portion awarded to the alternate Payee.
{¶3} A Military Qualifying Court Order (“MQCO”) signed by the parties, their
counsel and the presiding judge was filed on April 17, 2006. The MQCO indicated
Appellant was receiving a military retirement benefit from the United States Air Force
and Appellee had an interest therein. Appellee was entitled to receive $924.71/month
as her portion of the retirement benefits. Richland County, Case No. 12CA101 3
{¶4} Appellant began receiving disability benefits on November 1, 2007. As a
result, Appellee’s portion of the retirement benefits was reduced to $740.29/month.
Appellee filed a motion in contempt based upon Appellant’s failure to comply with the
MQCO on November 27, 2007. Specifically, Appellee asserted Appellant should be
held in contempt for failing to directly pay her $184.42/month to neutralize the effect of
Appellant’s receipt of disability benefits. Following a hearing, the magistrate found
Appellant in contempt. The magistrate imposed a jail sentence of ten-days but provided
Appellant with the opportunity to purge the contempt by satisfying three conditions.
Appellant filed objections to the magistrate’s decision, which the trial court overruled.
The trial court approved and adopted the magistrate’s decision as order of the court.
{¶5} On July 10, 2008, Appellee filed a motion asking the trial court to impose
the contempt order. Following a hearing, the magistrate found Appellant had not
demonstrated any defense for his failure to satisfy the second and third purge
conditions. The magistrate imposed the ten-day jail sentence upon Appellant.
Appellant filed objections to the magistrate’s decision, which the trial court overruled.
Appellant filed an appeal to this Court, which affirmed the trial court’s decision. Mosier
v. Mosier, 5th Dist. No. 2008 CA 0103, 2009 -Ohio- 1195.
{¶6} On January 9, 2012, Appellant filed a motion for relief from judgment
pursuant to Civ. R. 60(B)(4) and (5). The parties stipulated the motion would be
submitted on the briefs and no further evidence would be heard. Via Decision filed June
20, 2012, the magistrate denied Appellant’s motion for relief from judgment. Appellant
filed objections. The trial court overruled Appellant’s objections and adopted the
magistrate’s decision with one exception: Richland County, Case No. 12CA101 4
The Court does not adopt the Magistrate’s finding that the military
order failed to include an appropriate social security offset as required by
the Decree. There was insufficient, if any, evidence submitted by
[Appellant] to demonstrate that Pension Evaluators did not calculate the
appropriate Social Security [sic] offset. There was also insufficient, if any,
evidence submitted to demonstrate that the appropriate social security
offset was anything other than zero. September 10, 2012 Judgment Entry
at 25.
{¶7} It is from this judgment entry Appellant appeals, assigning as error:
{¶8} “I. THE TRIAL COURT’S DENIAL OF DEFENDANT-APPELLANT’S
CIV.R. 60(B) MOTION WAS INCONSISTENT AND CONTRARY TO CURRENT CASE
LAW AND IS UNSUPPORTED BY SUFFICIENT CREDIBLE FACTS AND/OR THE
MANIFEST WEIGHT OF THE EVIDENCE PRESENTED TO THE TRIAL COURT FOR
REVIEW.”
I
{¶9} 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) 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 Richland County, Case No. 12CA101 5
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. 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.
{¶10} A movant for relief from judgment under Civ. R. 60(B) must demonstrate:
(1) the party has a meritorious defense or claim to present if relief is granted; (2) the
party is entitled to relief under one of the grounds stated in Civ. R. 60(B)(1)-(5); and (3)
the motion is made within a reasonable time. GTE Automatic Elec., Inc. v. ARC
Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the
syllabus. The movant must submit factual material with his motion which demonstrates
grounds which, if true, would constitute a defense to the action. Matson v. Marks, 32
Ohio App.2d 319, 327, 291 N.E.2d 491 (1972). The motion must be supported with
evidence of at least affidavit quality. East Ohio Gas v. Walker, 59 Ohio App.2d 216, 220,
394 N.E.2d 348 (1978). Where the motion and supporting evidence contain sufficient
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[Cite as Mosier v. Mosier, 2013-Ohio-3024.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
DONNA E. MOSIER JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 12CA101 MICHAEL L. MOSIER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Domestic Relations Division Case No. 01-D-624
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 11, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
THOMAS L. COLE HOWARD C. WHITCOMB, III. Weldon, Huston, & Keyser, L.L.P. 127 West Perry Street, Suite 105 76 N. Mulberry Street Port Clinton, OH 43452 Mansfield, OH 44902 Richland County, Case No. 12CA101 2
Hoffman, P.J.
{¶1} Defendant-appellant Michael L. Mosier appeals the September 10, 2012
Judgment Entry entered by the Richland County Court of Common Pleas, Domestic
Relations Division, which overruled his objections to the magistrate’s June 20, 2012
decision, and approved and adopted the decision with the exception of the social
security offset as the order of the court. Plaintiff-appellee is Donna E. Mosier, nka
Eaton.
STATEMENT OF THE CASE AND FACTS
{¶2} The parties were divorced via Judgment Entry/Decree of Divorce filed
March 6, 2003. As part of the divorce, the trial court awarded Appellee:
Fifty percent (50%) of the coverture portion of [Appellant’s] Air
Force and Ohio National Guard Retirement Benefits vested as of
December 31, 2002. The appropriate Social Security offset to be
calculated by Pension Evaluators and the Qualified Domestic Relations
Order to effect said award to be prepared by Pension Evaluators with the
cost to be equally divided between [Appellee and Appellant]. The
Qualified Order to contain the appropriate survivorship benefits as to that
portion awarded to the alternate Payee.
{¶3} A Military Qualifying Court Order (“MQCO”) signed by the parties, their
counsel and the presiding judge was filed on April 17, 2006. The MQCO indicated
Appellant was receiving a military retirement benefit from the United States Air Force
and Appellee had an interest therein. Appellee was entitled to receive $924.71/month
as her portion of the retirement benefits. Richland County, Case No. 12CA101 3
{¶4} Appellant began receiving disability benefits on November 1, 2007. As a
result, Appellee’s portion of the retirement benefits was reduced to $740.29/month.
Appellee filed a motion in contempt based upon Appellant’s failure to comply with the
MQCO on November 27, 2007. Specifically, Appellee asserted Appellant should be
held in contempt for failing to directly pay her $184.42/month to neutralize the effect of
Appellant’s receipt of disability benefits. Following a hearing, the magistrate found
Appellant in contempt. The magistrate imposed a jail sentence of ten-days but provided
Appellant with the opportunity to purge the contempt by satisfying three conditions.
Appellant filed objections to the magistrate’s decision, which the trial court overruled.
The trial court approved and adopted the magistrate’s decision as order of the court.
{¶5} On July 10, 2008, Appellee filed a motion asking the trial court to impose
the contempt order. Following a hearing, the magistrate found Appellant had not
demonstrated any defense for his failure to satisfy the second and third purge
conditions. The magistrate imposed the ten-day jail sentence upon Appellant.
Appellant filed objections to the magistrate’s decision, which the trial court overruled.
Appellant filed an appeal to this Court, which affirmed the trial court’s decision. Mosier
v. Mosier, 5th Dist. No. 2008 CA 0103, 2009 -Ohio- 1195.
{¶6} On January 9, 2012, Appellant filed a motion for relief from judgment
pursuant to Civ. R. 60(B)(4) and (5). The parties stipulated the motion would be
submitted on the briefs and no further evidence would be heard. Via Decision filed June
20, 2012, the magistrate denied Appellant’s motion for relief from judgment. Appellant
filed objections. The trial court overruled Appellant’s objections and adopted the
magistrate’s decision with one exception: Richland County, Case No. 12CA101 4
The Court does not adopt the Magistrate’s finding that the military
order failed to include an appropriate social security offset as required by
the Decree. There was insufficient, if any, evidence submitted by
[Appellant] to demonstrate that Pension Evaluators did not calculate the
appropriate Social Security [sic] offset. There was also insufficient, if any,
evidence submitted to demonstrate that the appropriate social security
offset was anything other than zero. September 10, 2012 Judgment Entry
at 25.
{¶7} It is from this judgment entry Appellant appeals, assigning as error:
{¶8} “I. THE TRIAL COURT’S DENIAL OF DEFENDANT-APPELLANT’S
CIV.R. 60(B) MOTION WAS INCONSISTENT AND CONTRARY TO CURRENT CASE
LAW AND IS UNSUPPORTED BY SUFFICIENT CREDIBLE FACTS AND/OR THE
MANIFEST WEIGHT OF THE EVIDENCE PRESENTED TO THE TRIAL COURT FOR
REVIEW.”
I
{¶9} 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) 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 Richland County, Case No. 12CA101 5
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. 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.
{¶10} A movant for relief from judgment under Civ. R. 60(B) must demonstrate:
(1) the party has a meritorious defense or claim to present if relief is granted; (2) the
party is entitled to relief under one of the grounds stated in Civ. R. 60(B)(1)-(5); and (3)
the motion is made within a reasonable time. GTE Automatic Elec., Inc. v. ARC
Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the
syllabus. The movant must submit factual material with his motion which demonstrates
grounds which, if true, would constitute a defense to the action. Matson v. Marks, 32
Ohio App.2d 319, 327, 291 N.E.2d 491 (1972). The motion must be supported with
evidence of at least affidavit quality. East Ohio Gas v. Walker, 59 Ohio App.2d 216, 220,
394 N.E.2d 348 (1978). Where the motion and supporting evidence contain sufficient
allegations of operative facts which would support a meritorious defense to the
judgment, the court must assign the matter for evidentiary hearing. BancOhio Natl. Bank
v. Schiesswohl, 51 Ohio App.3d 130, 554 N.E.2d 1362 (1988), paragraph one of the
syllabus, 51 Ohio App.3d 130, 554 N.E.2d 1362. Bare assertions of fact do not entitle Richland County, Case No. 12CA101 6
the movant to relief or to a hearing on the motion to set aside the judgment. Mount
Vernon Farmer's Exchange v. McKee, 5th Dist. App. No. 98-CA-27 (Citations omitted).
{¶11} The question of whether a motion for relief from judgment should be
granted is entrusted to the sound discretion of the trial court and will not be disturbed on
appeal absent an abuse of discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172
(1994).
{¶12} Assuming, arguendo, Appellant is able to establish the first two prongs of
the GTE Automatic Elec. test, we, nonetheless, find the trial court did not abuse its
discretion in denying the motion as such was not made within a reasonable time.
Appellant filed his motion for relief from judgment almost six years after the filing of the
MQCO. Appellee filed her motion in contempt on November 27, 2007. At that point,
Appellant should have been aware of any alleged inconsistencies between the divorce
decree and the MQCO.
{¶13} Appellant’s sole assignment of error is overruled.
{¶14} The judgment of the Richland County Court of Common Pleas, Domestic
Relations Division, is affirmed.
By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur ___________________________________ HON. WILLIAM B. HOFFMAN
___________________________________ HON. PATRICIA A. DELANEY
___________________________________ HON. CRAIG R. BALDWIN Richland County, Case No. 12CA101 7
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
DONNA E. MOSIER : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : MICHAEL L. MOSIER : : Defendant-Appellant : Case No. 12CA101
For the reason stated in our accompanying Opinion, the judgment of the
Richland County Court of Common Pleas, Domestic Relations Division, is affirmed.
Costs assessed to Appellant.
___________________________________ HON. WILLIAM B. HOFFMAN
___________________________________ HON. CRAIG R. BALDWIN