[Cite as Premier v. Premier, 2016-Ohio-673.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: GARY PREMIER : Hon. Sheila G. Farmer, J. : Hon. W. Scott Gwin, J. Plaintiff-Appellant : Hon. John W. Wise, J. : -vs- : : Case No. 2015CA00030 NICOLE PREMIER : : Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Domestic Relations Division, Case No. 2012DR00311
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 22, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
DOUGLAS BOND GREGORY RUFO MORELLO & BOND, LTD Suite 401, Crescent Bldg. 700 Courtyard Centre 4774 Munson Street N.W. 116 Cleveland Avenue N.W. Canton, OH 44718 Canton, OH 44702 [Cite as Premier v. Premier, 2016-Ohio-673.]
Gwin, J.,
{¶1} Appellant appeals the November 12, 2014 judgment entry of the Stark
County Common Pleas Court, Domestic Relations Division, overruling his objections to
the magistrate’s decision.
Facts & Procedural History
{¶2} Appellant Gary Premier (“Father”) filed a complaint for divorce against
appellee Nicole Premier (“Mother”) on March 13, 2012. The trial court issued a judgment
entry and decree of divorce on December 3, 2012. The parties agreed that Mother would
be the custodial parent of the parties’ two children, A.P., born October 20, 1998 and K.P.,
born August 23, 2004. Father had parenting time with the children weekly to
accommodate his work schedule. The trial court also ordered the children to continue
counseling.
{¶3} In the findings of fact in the divorce decree, the trial court found the marital
residence was in foreclosure. Further, that the residence had been in Father’s family
since it was built and Father wanted to save the property from foreclosure if possible. The
divorce decree provides as follows: “Husband is to receive the marital residence free
and clear of any claim by Mother so long as he refinances within nine months and
removes her from the mortgage.” The trial court found the total division of property was
not equal. Thus, to equalize the property division, the trial court ordered Father to pay
Mother $1,544.
{¶4} In June of 2013, Father filed a motion for reallocation of parental rights and
to enforce the property division. In August of 2013, Mother filed a motion to modify the Stark County, Case No. 2015CA00030 3
order as to parental rights. On April 11, 2014, the trial court issued a judgment entry
dismissing, without prejudice, all outstanding motions by agreement of the parties.
{¶5} On May 1, 2014, Father filed a motion for relief from judgment pursuant to
Civil Rule 60(B)(4) and (5) with regard to the equitable distribution of the property. Father
asserted he was assessed a tax obligation due to a deficiency in the sale of the residence
and thus the property distribution was not equitable.
{¶6} Father also filed a motion for reallocation of parental rights and
responsibilities alleging there was a change of circumstances because Mother
continuously encumbered his ability to maintain his relationship with his children. Mother
filed a motion to dismiss Father’s motion for reallocation of parental rights and motion for
relief from judgment and argued there was no change of circumstances since the divorce
decree. Further, that Father failed to meet the requirements for a Civil Rule 60(B)(4) or
(5) motion.
{¶7} On July 14, 2014, Father filed an amended motion for reallocation of
parental rights and responsibilities. Father alleged that: Mother moved the children out
of the martial residence at the last minute; the children were homeless; Mother had dated
several different men; Mother was banned from the counselor’s office due to her behavior;
and Mother allowed the children not to attend school, affecting their grades.
{¶8} A magistrate held an evidentiary hearing on Father’s motions on August 27,
2014. The magistrate bifurcated the action on change of circumstances and best interest,
first conducting the evidentiary hearing on change of circumstances and the motion for
relief from judgment. Stark County, Case No. 2015CA00030 4
{¶9} Frederick Snowden (“Snowden”), a tax professional, testified the form
Father received from the IRS regarding the taxes for cancellation of debt would have been
received by Father in early 2014, with it being sent, at the latest, on January 31, 2014.
Further, that in every foreclosure there is generally a tax consequence.
{¶10} Scarlet Rue (“Rue”), the owner of the Building Blocks Counseling Center
and licensed clinical counselor supervisor testified the children have been seeing Lara
DiSabato (“DiSabato”), a different counselor in the practice. Rue oversees any questions
DiSabato has and any ethical concerns she is concerned about. Rue does not monitor
or look at DiSabato’s charts. Rue has seen both Mother and Father in the waiting room
at counseling and once saw Mother listening at the door of the counseling session. Rue
stated neither parent is allowed in the counseling session with the children and the
counselor has not allowed phone calls from Mother. Rue testified this could be disruptive,
depending upon the situation. The magistrate sustained an objection on Rue’s opinion
as to whether Mother is disruptive to counseling since she was not the counselor of the
children and the question did not relate to any question or ethical concerns DiSabato had.
{¶11} Melissa Pitinii (“Pitinii”), the children’s guardian ad litem, testified the
children are getting emotionally better through counseling as time passes. Pitinii does
not believe either parent has done anything to interfere with the companionship time of
the other. She is not aware of any disruption of parenting time except for a few hours on
Father’s Day, but she does not believe the children suffered any emotional trauma from
that incident. Father told Pitinii Mother’s paramours were spending the night, but Pitinii
did not discuss that with the children, nor did the children tell her anything about Mother’s
paramours spending the night. Stark County, Case No. 2015CA00030 5
{¶12} With regards to the move, Pitinii stated it happened quickly for the children.
Pitinii is not sure the children had a clear understanding of what was going to happen.
Pitinii testified there were no psychological problems with the children due to the move
outside the couple of days before and after the move. Pitinii stated the children were not
homeless and the move did not result in severe emotional trauma to the children. Pitinii
testified the trial court was aware of the foreclosure of the marital home at the time of the
divorce decree.
{¶13} Pitinii testified she has no concerns about the children’s attendance at
school and the children was doing well in school. Further, the employment situation of
the parents has not changed since the time of the divorce decree. Pitinii stated the
problems the children had and have are with dealing with both parents and with their
parents fighting. The children blame both parents equally. Pitinii testified no one incident
has traumatized the children, but the way their parents have behaved is upsetting to them
and they have to deal with their parents’ behavior instead of being children.
{¶14} Father testified the children were homeless because when they left the
martial home, they did not move into their new home and did not know where they were
going. Father stated the children were very upset by the move. Mother never told Father
where or when she was moving and did not give him the new address information for one
week. Father stated on Father’s Day 2013, Mother was 1.5 hours late for the visit with
him and the children were upset. Further, Mother scheduled vacation with less than the
sixty (60) day required notice. Father testified he knew in May of 2013 he was not going
to refinance the marital property and let the foreclosure proceed. Stark County, Case No. 2015CA00030 6
{¶15} Father testified he saw his son driving at Belden Village during the school
day with his grandmother. On cross-examination, Father stated he had no information
from the teacher or a report to indicate his son’s lower grade was due to absence. Father
agreed the school records show A.P. was absent four days and tardy one day for the
year.
{¶16} Mother testified she did not leave the martial home for several months
because she did not think she had to leave prior to the house being foreclosed upon.
Mother stated she and the children looked at multiple houses. She bought a foreclosed
home and there were complications such that it was several months until they could move
into the new home. Mother testified the children saw the house she was buying and knew
where they were going. She and the children stayed at her mother’s house for
approximately one week between the time they moved out of the marital home and into
the new home. Mother stated the children were upset to leave the marital home, but were
not traumatized. Mother testified the children were never homeless.
{¶17} Mother testified she has dated two people since the divorce decree in
December of 2012. The one paramour met the children six to eight months after they
started dating and Mother stated there was no distraction to the children’s lives. The
second paramour Mother met through the children’s activities and there was no visible
stress to the children when she began dating him. Mother was not informed she was
banned from the counselor’s office. Mother testified she had not allowed the children to
miss school without a proper reason. Mother stated in 2013 she gave Father forty-two
days’ notice of vacation instead of sixty days’ notice. Mother admitted on Father’s Day
2013, she overslept and thus the children were late to visitation with Father. Mother Stark County, Case No. 2015CA00030 7
stated it was her fault and she gave Father more hours that night to make up for being
late in the morning.
{¶18} The magistrate issued a decision on September 10, 2014. The magistrate
detailed findings as to each of Father’s assertions for change of circumstances. The
magistrate did not find Father’s assertion about the children being traumatized from an
abrupt move or that they were homeless to be true. Further, Father did not miss any
companionship time due to Mother’s delay of one week in providing him with her address.
As to Mother’s boyfriends, the magistrate found, based upon the testimony of the
guardian ad litem, that the children did not like the boyfriends or Father’s new wife. The
magistrate also noted the guardian ad litem’s testimony that the parents have always
behaved badly towards each other and the conflict still exists. However, the children are
doing better over time with counseling. Further, the magistrate cited the guardian ad
litem’s testimony that no one event has had a harmful effect on the children.
{¶19} The magistrate found no change of circumstances pursuant to R.C.
3109.04(E)(1)(a). The magistrate stated the children had to move out of the marital
residence, but this was known at the time of the divorce decree. Further, that minimum
parenting time disputes did not result in the interference with Father’s parenting time and
was insufficient to constitute change of circumstances.
{¶20} As to Father’s motion for relief from judgment, the magistrate found Father
did not present a meritorious claim or defense because the award of the marital residence
was awarded to Father and the award of $1,544 to Mother was an equal division of the
assets. Further, at the time of the divorce decree, both parties knew the house was in
foreclosure and anyone going through a foreclosure would have tax consequences. The Stark County, Case No. 2015CA00030 8
magistrate also found Father did not bring his motion within a reasonable time since he
knew in May of 2013 he was not going to refinance the property. The magistrate denied
Father’s motion for relief from judgment.
{¶21} Father filed objections to the magistrate’s decisions on September 24, 2014
and supplemental objections on November 5, 2014. Father argued the magistrate erred
in: failing to consider cumulative evidence of change of circumstances; wrongly limiting
the guardian ad litem’s testimony; refusing to vacate the judgment; overlooking the
testimony about the move affecting the children; and in limiting Rue’s testimony.
{¶22} The trial court held a hearing on Father’s objections on November 12, 2014.
On November 12, 2014, the trial court issued a judgment entry approving and adopting
the magistrate’s decision. On January 23, 2015, the trial court issued a judgment entry
dealing with the balance of Father’s motions with regard to spousal support and child
support.
{¶23} Father appeals the November 12, 2014 judgment entry of the Stark County
Court of Common Pleas and assigns the following as error:
{¶24} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO FIND
A CHANGE IN CIRCUMSTANCES HAD OCCURRED BECAUSE IT FAILED TO
CONSIDER THE TOTALITY OF THE CIRCUMSTANCES AND INSTEAD IT
IMPROPERLY CONSIDERED EACH CHANGE INDIVIDUALLY.
{¶25} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY LIMITING THE
GUARDIAN AD LITEM’S TESTIMONY REGARDING HER OPINION REGARDING THE
CHANGE OF CIRCUMSTANCES. Stark County, Case No. 2015CA00030 9
{¶26} “ III. THE TRIAL COURT ABUSED ITS DISCRETION BY LIMITING THE
TESTIMONY OF SCARLET RUE, THE OWNER AND SUPERVISING THERAPIST,
REGARDING THE INFORMATION AND OBSERVATIONS OF A THERAPIST WHO
WAS WORKING UNDER HER SUPERVISION.
{¶27} “IV. THE TRIAL COURT’S DENIAL OF THE MOTION FOR RELIEF FROM
JUDGMENT IS CONTRARY TO LAW AS THE ORIGINAL DIVISION OF PROPERTY IS
INEQUITABLE.”
I.
{¶28} In his first assignment of error, Father argues the trial court erred in finding
there was no change of circumstances.
{¶29} Our standard of review in assessing the disposition of child custody matters
is that of abuse of discretion. Miller v. Miller, 37 Ohio St.3d 71, 523 N.E.2d 846 (1988).
Furthermore, as an appellate court reviewing evidence in custody matters, we do not
function as fact finders; we neither weigh the evidence nor judge the credibility of the
witnesses. Our role is to determine whether there is relevant, competent and credible
evidence upon which the fact finder could base his or her judgment. Dinger v. Dinger,
5th Dist. Stark No. 2001 CA 00039, 2001-Ohio-1386. The trial court is “best able to view
the witnesses and observe their demeanor, gestures, and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.” Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). Deferential review in a child
custody determination is especially crucial “where there may be much evident by the
parties’ demeanor and attitude that does not translate to the record well.” Davis v.
Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997). Stark County, Case No. 2015CA00030 10
{¶30} R.C. 3109.04(E)(1)(a) provides as follows:
The court shall not modify a prior decree allocating parental rights and
responsibilities for the care of children unless it finds, based on facts that
have arisen since the prior decree or that were unknown to the court at the
time of the prior decree, that a change has occurred in the circumstances
of the child, the child’s residential parent * * * and that the modification is
necessary to serve the best interest of the child. In applying these
standards, the court shall retain the residential parent designated by the
prior decree * * *, unless a modification is in the best interest of the child
and one of the following applies * * * (iii) the harm likely to be caused by a
change in environment is outweighed by the advantages of the change of
environment to the child.
{¶31} Thus, a trial court will not have to reach the best interest analysis if a change
of circumstances is not found. Noe v. Noe, 5th Dist. Ashland No. 14 COA 026, 2015-
Ohio-847. R.C. 3109.04 does not define the concept of “change in circumstances.”
However, Ohio courts have held the phrase is intended to denote “an event, occurrence,
or situation which has a material and adverse effect upon a child.” Wyss v. Wyss, 3 Ohio
App.3d 412, 445 N.E.2d 1153 (10th Dist. 1982). A trial court “must carefully consider the
nature, circumstances, and effects of each purported change, such as growth and
improvement (excepting some measure of mistakes along the way) should be fostered
rather than blindly chilled or penalized in the name of stability.” Murphy v. Murphy, 5th
Dist. Tuscarawas No. 2014 AP 01 0002, 2014-Ohio-4020. Stark County, Case No. 2015CA00030 11
{¶32} Additionally the change of circumstances must be “one of substance, not a
slight or inconsequential change.” Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d
1159 (1997). This prevents a constant re-litigation of the issues that have already been
determined by a trial court. Id. The change in circumstances “must be based upon some
fact that has arisen since the prior order or was unknown at the time of the prior order.”
Brammer v. Brammer, 194 Ohio App.3d 240, 2011-Ohio-2610, 955 N.E.2d 453 (3rd Dist.).
{¶33} Father alleges the trial court failed to consider the totality of the
circumstances with regards to the change in circumstances and instead considered each
change alleged by Father individually. Further, that the trial court’s determination was
against the manifest weight of the evidence because there was a change of
circumstances regarding: the parents’ failure to work together and properly communicate;
interference with visitation; change of residence and homelessness of the children; and
school performance of the children. We disagree with appellant.
{¶34} In the decision, the magistrate went through each prong of Father’s motion
as to change in circumstances in accordance with R.C. 3109.04(E)(1)(a) and with the
directive that it “must carefully consider the nature, circumstances, and effects of each
purported change.” Murphy v. Murphy, 5th Dist. Tuscarawas No. 2014 AP 01 002, 2014-
Ohio-4020. The magistrate analyzed each circumstance listed and determined: Father’s
assertion about the children being homeless and having undue stress due to the move
was not credible; the move was known by the parties at the time of the divorce decree;
the minimal parenting time disputes did not result in the interference with Father’s
parenting time; and there was no change in the children’s school circumstances. The
magistrate concluded there was no change of circumstances. Though Father argues the Stark County, Case No. 2015CA00030 12
magistrate’s findings as to each of his alleged change means the magistrate did not
consider the totality of the circumstances, it is clear from the record and the magistrate’s
decision that the magistrate did consider all of the circumstances at issue, found several
of these circumstances to be “known” to the trial court at the time of the divorce decree,
and did not find the circumstances, singularly or together, constituted a change of
circumstances.
{¶35} With regards to Father’s argument about the move, the plain language of
the divorce decree demonstrates that both parties knew the children were going to move
out of the marital home, as did the trial court, at the time of the divorce decree. Pitinii
testified the trial court was aware of the foreclosure of the marital home at the time of the
divorce decree. Accordingly, this alleged circumstance was not “unknown to the court at
the time of the prior decree.” R.C. 3109.4(E)(1)(a). Further, “since a child almost is
almost always going to be harmed to some extent by being moved, the non-custodial
parent should not be able to satisfy his or her burden by simply showing that some harm
will result; the amount of harm must transcend the normal and expected problems of
adjustment.” Noe v. Noe, 5th Dist. Ashland No. 14 COA 026, 2015-Ohio-847. Pitinii
testified there was no severe emotional trauma to the children due to the move. Despite
Father’s contention, the testimony of both Mother and Pitinii reflects that the children were
not homeless and stayed with their grandmother for approximately a week. It is well-
established that the trial court, as the fact finder, is free to believe all, part, or none of the
testimony of each witness. Hrabovsky v. Axley, 5th Dist. Stark No. 2013CA00156, 2014-
Ohio-1168. Stark County, Case No. 2015CA00030 13
{¶36} Father contends Pitinii’s report contained evidence of change of
circumstance that the trial court failed to consider as to the parents’ failure to work
together and properly communicate. However, it is clear the magistrate did take this issue
into consideration. The magistrate specifically cited to the portion of Pitinii’s testimony
wherein she stated that the parents have always behaved badly towards each other and
this conflict still exists, making it difficult for the children to truly be children when dealing
with their parents’ issues; however, the children are doing better over time with
counseling. Thus, the parents’ failure to communicate and their conflict has existed since
their separation and has not arisen since the prior decree, nor was this conflict unknown
to the trial court at the outset. The testimony by Pitinii demonstrates the children are
actually doing better dealing with their parents’ continued communication and conflict
issues since the divorce decree through counseling.
{¶37} Father finally argues the trial court erred in determining that neither Mother’s
interference with visitation nor the change in the child’s school performance were changes
in circumstances. The evidence establishes that Mother was late for one visitation by 1.5
hours and once gave Father forty-two (42) days’ notice of vacation rather than 60 days’
notice of vacation. Further, though Father testified he saw his son driving around at
Belden Village once during the school day, he also stated he had no information from the
teacher or a report to indicate his son’s lower grade was due to absence. Further, Father
agreed school records show his son was absent four days and tardy one day for the
school year. Pitinii testified she has no concerns about the children’s attendance at
school and the children were doing well in school. Based on this testimony, we find the Stark County, Case No. 2015CA00030 14
trial court did not abuse its discretion in determining these did not constitute a change in
{¶38} Though Father contends the trial court erred in not finding the combination
of events was a change in circumstances, we find the trial court did not abuse its
discretion in its determination. Several of the circumstances cited by Father were known
to the trial court at the time of the divorce decree and thus were not facts arisen since the
decree. Further, upon review, we find it was within the trial court’s discretion to determine
that nothing rising to the level of a material and adverse occurrence or occurrences
impacting the children was demonstrated for purposes of finding a change in
circumstances under R.C. 3109.04(E)(a)(a).
{¶39} Father’s first assignment of error is overruled.
II.
{¶40} Father contends the trial court erred in limiting Pitinii’s testimony regarding
her opinion as to whether a change of circumstance existed. We disagree.
{¶41} A trial court possesses broad discretion with respect to the admission of
evidence and an appellate court will not disturb evidentiary rulings absent an abuse of
discretion. State v. Roberts, 156 Ohio App.3d 352, 2004-Ohio-962, 805 N.E.2d 594 (9th
Dist.). The role of a guardian ad litem is to advocate for the child’s best interests and is
not aligned with any party on the legal issues presented. In re Seitz, 11th Dist. Trumbull
No. 2002-T-0097, 2003-Ohio-5218.
{¶42} The only question the trial court would not permit Pitinii to answer is whether
she believed a change of circumstances existed from the time of the divorce decree. The
trial court allowed Pitinii to testify fully about her investigation and all factual issues Stark County, Case No. 2015CA00030 15
surrounding the allegations made by Father as the basis for the change in circumstances
and further allowed her to testify as to whether the children were harmed or traumatized
by the events cited by Father in his motion.
{¶43} As detailed in R.C. 3109.04(E)(1)(a), the court, not the guardian ad litem,
has to make a legal determination from the facts presented on whether a change in
circumstances exists. Counsel for Father recognized this distinction when he stated,
during his examination of Pitinii, “And I know ultimately your role in this is not to say
whether or not a change of circumstances has occurred in … in regards to modifications
of allocation of parental rights you would agree with me on that?” Pitinii responded “Yes”
to counsel’s question. (T. at 38). Further, Pitinii testified that she had no involvement
with the children from December of 2012 until August of 2013 and thus could not opine
as to change of circumstances during that time. Accordingly, the trial court did not abuse
its discretion in not permitting Pitinii to testify to the legal conclusion as to whether there
was a change of circumstances. Appellant’s second assignment of error is overruled.
III.
{¶44} Father argues the trial court abused its discretion by limiting the testimony
of Rue regarding the information and observations of a therapist who was working under
her supervision. We disagree.
{¶45} The admission or exclusion of evidence rests within the sound discretion of
the trial court. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). A reviewing
court must not disturb a trial court’s evidentiary ruling unless the ruling is found to be an
abuse of discretion. Id. Stark County, Case No. 2015CA00030 16
{¶46} In this case, the magistrate sustained an objection when counsel for Father
inquired of Rue as to what DiSabato told her about an incident between Mother and
DiSabato and Mother’s being disruptive to the children’s counseling. The magistrate
determined this to be inadmissible hearsay. Hearsay is defined as “a statement, other
than one made by the declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted” and is not admissible. Evidence Rule 801(C).
{¶47} We find the trial court did not abuse its discretion with this evidentiary ruling.
Rue was not present at the incident alleged by Father between Mother and DiSabato and
Rue specifically testified she does not review or monitor DiSabato’s charts. While Rue
could testify as to any ethical concerns or concerns about her safety that DiSabato had,
the testimony at issue was not related to any ethical concerns or concerns about
DiSabato’s safety. Rue could not testify to her discussions with DiSabato about an
incident she was not present for when Father sought to present this testimony to prove
the truth of his allegation of Mother’s disruptive behavior at counseling. Further, the
magistrate permitted Rue to testify about her interactions with Mother and the restrictions
that Rue herself placed on Mother due to her interactions with Rue and DiSabato.
{¶48} Father’s third assignment of error is overruled.
IV.
{¶49} Father contends in his final assignment of error that the trial court abused
its discretion when it denied his motion to vacate.
{¶50} The decision whether to grant a motion for relief from judgment under Civil
Rule 60(B) lies within the trial court’s sound discretion. Griffey v. Rajan, 33 Ohio St.3d
75, 514 N.E.2d 1122 (1987). In order to find an abuse of discretion, we must determine Stark County, Case No. 2015CA00030 17
the trial court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶51} A party seeking relief from judgment pursuant to Civil Rule 60(B) must
show: a meritorious defense or claim to present if relief is granted; entitlement to relief
under one of the grounds set forth in Civil Rule 60(B)(1) – (5); and the motion must be
timely filed. GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351
N.E.2d 113 (1976). A failure to establish any one of these requirements will cause the
motion to be overruled. Rose Chevrolet v. Adams, 36 Ohio St.3d 17, 520 N.E.2d 564
(1988).
{¶52} A Civil Rule 60(B)(5) motion must be made within a reasonable time.
However, the rule does not specify as to what qualifies as a reasonable time. The
determination as to what constitutes reasonable time is for the trial court to determine in
the exercise of sound discretion. Claycraft Motors, L.L.C. v. Bulldog Auto Sales, Inc., 5th
Dist. Fairfield No. 13-CA-70, 2014-Ohio-2086. Even though courts have granted relief
from judgment after lengthy delays, it is usually only under unique circumstances. Harris
v. Johnson, 5th Dist. Perry No. 10 CA 22, 2011-Ohio-3102.
{¶53} The trial court found Father’s motion for relief from judgment was not
brought within a reasonable time. Upon review of the record in light of the evidence
presented for the trial court’s consideration, we find appellant failed to establish the trial
court’s conclusion that Father’s motion to vacate was made within a reasonable time
constituted an abuse of discretion. Father testified that in May of 2013 he knew he was
not going to refinance the marital home and let the foreclosure proceed. Snowden
testified in every foreclosure, there is generally a tax consequence. Further, though the Stark County, Case No. 2015CA00030 18
testimony reflects that Father received the actual tax bill information in late January or
early February of 2014, he did not file his motion until May 1, 2014. Father offers no
explanation for this delay.
{¶54} The trial court additionally found Father did now show a meritorious defense
or claim to present if relief is granted because the divorce decree contained an equal
division of assets. In this case, the original divorce decree specifically provided for the
division of property, including the real estate at issue. As noted by the trial court, since
the residence had been in Father’s family since it was built, Father sought to save the
property from foreclosure. Father was awarded the marital residence free and clear of
any claim from Mother as long as he refinanced within nine months and removed her from
the mortgage. The trial court further found the total division of property was not equal
and awarded Mother $1,544 to equalize the property division. Father did not appeal this
decision.
{¶55} It is well-established that a Civil Rule 60(B) motion cannot be used as a
substitute for an appeal and the doctrine of res judicata applies to such a motion. Harris
v. Anderson, 109 Ohio St.3d 101, 2006-Ohio-1943, 846 N.E.2d 43. In this case, Father
is attempting to utilize Civil Rule 60(B) motion in order to relitigate an issue he failed to
appeal in the original divorce decree. Thus, the doctrine of res judicata applies.
{¶56} Further, we find the trial court’s determination that Father does not have a
meritorious claim or defense not to be an abuse of discretion. The award of the marital
residence to Father and the $1,544 to equalize the distribution was not conditioned on
refinancing. At the time of the divorce decree, both parties knew the house was in
foreclosure. Father chose not to refinance the home and let the foreclosure proceed. Stark County, Case No. 2015CA00030 19
{¶57} Father’s fourth assignment of error is overruled.
{¶58} Based on the foregoing, we overrule Father’s assignments of error. The
November 12, 2014 judgment entry of the Stark County Common Pleas Court, Domestic
Relations Division, is affirmed.
By Gwin, J.,
Farmer, P.J., and
Wise, J., concur