[Cite as Rodeno v. Mezenski, 2022-Ohio-1176.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
PETER RODENO, EXECUTOR OF THE : ESTATE OF DANIEL A. RODENO, No. 111030 Plaintiff-Appellee, :
v. :
ALAN MEZENSKI, GUARDIAN OF : KAREN L. RODENO,
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 7, 2022
Civil Appeal from the Cuyahoga County Common Pleas Court Domestic Relations Division Case No. DR-18-372371
Appearances:
Eloff and Wilson, L.L.P., Kathryn Gonser Eloff and James Matthew Wilson; Milano Attorneys & Counselors at Law, Jay Milano and Kate Pruchnicki, for appellee.
Mark A. Ziccarelli, for appellant.
EILEEN A. GALLAGHER, J.:
In this accelerated appeal, appellant Alan Mezenski, guardian of
Karen L. Rodeno, appeals from the trial court’s order denying his motion for relief from judgment pursuant to Civ.R. 60(B)(5). Mezenski sought to vacate the trial
court’s final judgment entry of divorce, which granted a divorce between Daniel
Rodeno (“Daniel”) and Mezenski’s sister, Karen Rodeno (“Karen”), divided assets
and liabilities and ordered the payment of spousal support to Karen. Mezenski
claimed that Karen was entitled to relief from judgment under Civ.R. 60(B)(5)
because (1) Karen was incompetent at the time of the divorce decree and (2) it was
“no longer equitable to enforce” the divorce decree. Mezenski contends that the trial
court abused its discretion in failing to appoint a guardian ad litem to protect
Karen’s interests during the divorce proceedings and in denying his motion without
a hearing because the motion set forth sufficient operative facts entitling Karen to
relief from judgment under Civ.R. 60(B)(5).
For the reasons that follow, we affirm.
Procedural and Factual Background
Daniel and Karen were married on October 8, 1993. They had no
children together. On June 15, 2018, Daniel filed a complaint for divorce, alleging
that the couple was incompatible. Karen was personally served with a copy of the
complaint, but she did not file an answer and she did not appear for the divorce
hearing held on August 24, 2018. Following the hearing, the trial court issued a
divorce decree (the “divorce decree”), granting the parties a divorce based on
incompatibility, dividing the parties’ “separate property, marital property and debts
acquired during the marriage” and ordering Daniel to pay Karen $3,000 a month in
spousal support for 48 months. Daniel was awarded the parties’ interest in two residential properties
located in Westlake, Ohio and Berea, Ohio and was assigned the debt associated with
those properties, $321,888 and $93,446.32, respectively. He was also awarded
savings and checking accounts valued at $12,000, an IRA valued at $567,410.87, an
investment account valued at $93,817.87 and a 2011 Mercedes E350 valued at
$18,000. Karen was awarded a checking account valued at $125, personal jewelry
valued at $2,000, an IRA valued at $80,962.73 and an investment account valued
at $2,200. Karen also retained a monthly social security benefit of $1,569.10 and a
monthly pension benefit of $419.96.
The trial court found that the division of property, “though not equal,”
was “equitable” because the marriage was “a second marriage for both” parties and
“a significant portion” of Daniel’s IRA was “premarital.” The trial court’s August 24,
2018 journal entry, at the conclusion of the section addressing spousal support,
states that “[t]he [c]ourt shall not retain jurisdiction to modify this order.”
Daniel died on May 28, 2020. On October 1, 2020, the probate court
appointed Mezenski guardian of Karen’s person and estate in In the Matter of the
Guardianship of Karen Rodeno, Cuyahoga P.C. No. 2020GRD254156 (the “probate
case”).
On May 25, 2021 — more than two-and-one-half years after the
parties’ divorce — Mezenski filed a “motion for relief from judgment of August 24,
2018 and request for full evidentiary hearing.” Mezenski requested that the trial
court vacate the divorce decree and “grant [Karen] relief from the division of assets and liabilities and the non-payment [sic] of spousal support.” Mezenski claimed
that Karen’s incompetence, combined with an inequitable property division, the
payment of inadequate spousal support, Karen’s failure to enter an appearance in
the divorce proceeding, Daniel’s “knowledge of her incompetence, yet proceeding to
a divorce” and the trial court’s failure to appoint a guardian ad litem to protect her
interests pursuant to Civ.R. 17(B) constituted “any other reason justifying relief from
judgment” under Civ.R. 60(B)(5).
Mezenski asserted that, at the time of the divorce proceedings, Karen
was 67 years old and had been living in an assisted living facility for several years.
He claimed that “medical evidence,” including two “expert evaluations,” established
that Karen had been diagnosed with Parkinson’s Disease with dementia, had severe
cognitive and physical impairment and was unable to care for herself or manage her
finances and property. Mezenski further asserted that the division of assets and
liabilities set forth in the divorce decree was “no longer prospectively equitable”
because (1) the divorce decree provided a “minimal amount of spousal support of
only four (4) years on a twenty-five (25) year marriage,” (2) the Westlake, Ohio
property had “a value in 2018 according to the Cuyahoga County website of over
$657,000.00 * * * leaving equity of approximately $330,000.00, which was
retained by [Daniel],” (3) the Berea, Ohio property awarded to Daniel had a “value
of over $115,000.00” according to “[t]he Cuyahoga County’s website,” “with only
$93,000.00 owed” and (4) “[Daniel] retained the savings account, checking
account, IRA, and a motor vehicle, worth in excess of $691,000.00, whereas [the value of the] assets that [Karen] retained was a little over $85,000.00.” Mezenski
also alleged that Daniel had “an ownership interest in a very successful business”
that was “not disclosed at the time of the divorce.”
Mezenski claimed that the lengthy delay in filing the motion was
because he had “only recently” acquired “evidence that [Karen] had an expert
evaluation completed on December 7, 2017 indicating her incompetence” and due
to delays in opening an estate following Daniel’s death “in which to initiate litigation
concerning this matter.” The motion was served on appellee Peter Rodeno, executor
of the estate of Daniel A. Rodeno (“Peter”), on or about June 14, 2021.
On July 15, 2021, Mezenski filed an “amended motion” for relief from
judgment in which he submitted four exhibits in support of his motion: (1) a copy
of the August 24, 2018 divorce decree, (2) a copy of a statement of expert evaluation
(Probate Court Form 17.1) executed by Michael J. Dobrovich, D.O., relating to an
evaluation of Karen conducted on July 23, 2020, (3) a copy of the October 1, 2020
magistrate’s decision and “judgment entry granting guardianship” in the probate
case and (4) a copy of a July 17, 2020 letter from Mezenski’s counsel to Dr. Hubert
Fernandez, indicating that he had been retained to file a guardianship for Karen and
requesting that he complete and sign a statement of expert evaluation (Probate
Court Form 17.1) for Karen, and a copy of a statement of expert evaluation, signed
by an unidentified evaluator on September 3, 2020, purportedly relating to an
evaluation of Karen conducted at the Cleveland Clinic on December 7, 2017. Peter opposed the motion on the grounds that Mezenski could not
satisfy the requirements for relief under Civ.R. 60(B). Peter argued that the motion
should be denied because (1) Mezenski’s motion was not supported by “sworn
allegations of operative fact” or operative facts that were otherwise “in a form that
meets evidentiary standards,” (2) Mezenski had not established any grounds for
relief under Civ.R. 60(B), (3) Mezenski’s motion was not filed within a reasonable
time and (4) Mezenski had failed to establish that he has a meritorious claim or
defense because (i) the divorce proceedings abated upon Daniel’s death (and, as
such, the trial court lacked jurisdiction to do anything other than enforce the rights
fixed by the divorce decree pursuant to R.C. 2101.24 and 3105.011), (ii) the trial court
lacked jurisdiction to modify the spousal support award or property division
pursuant to R.C. 3105.18 and 3105.171 and (iii) any claims against Daniel’s estate
would be time-barred under R.C. 2117.06.
On October 28, 2021, the trial court denied the motion, indicating
that it was “constrained” by the holdings in Morris v. Morris, 148 Ohio St.3d 138,
2016-Ohio-5002, 69 N.E.3d 664, and Walsh v. Walsh, 157 Ohio St.3d 322, 2019-
Ohio-3723, 136 N.E.3d 460. Specifically, the trial court held that because the
divorce decree did not reserve jurisdiction to modify spousal support or the property
division and because the motion was filed “almost three years after the decree,” the
court was “without jurisdiction to grant the relief sought.”
Mezenski appealed, raising the following three assignments of error
for review: Assignment of Error No. 1: The trial court abused its discretion by failing to grant appellant’s motion for relief from judgment without holding a hearing where appellant has alleged operative facts warranting relief under Civ.R. 60(B)(5).
Assignment of Error No. 2: The trial court abused its discretion by failing to appoint a guardian ad litem for the protection of appellant pursuant to Ohio Civ.R. 17(B), as she was an incompetent person.
Assignment of Error No. 3: The trial court abused its discretion by dismissing appellant’s motion for relief from judgment based on its conclusion that it was without jurisdiction to grant the relief requested.
Mezenski’s assignments of error are interrelated. Accordingly, we
address them together.
Law and Analysis
Pursuant to Civ.R. 60(B), “[o]n motion and upon such terms as are
just,” a trial 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 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.
To prevail on a motion for relief from judgment, the moving party
must demonstrate that: (1) the party has a meritorious defense or claim to present if the 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.
Internatl. Total Servs. v. Estate of Nichols, 8th Dist. Cuyahoga No. 107751, 2019-
Ohio-4572, ¶ 7, citing GTE Automatic Elec. v. ARC Industries, 47 Ohio St.2d 146,
351 N.E.2d 113 (1976), paragraph two of the syllabus.
Civ.R. 60(B) “strikes a balance between the finality of judgments and
a perfect result ‘by vesting the courts with broad, but not unlimited authority to set
aside judgments.”’ Ouellette v. Ouellette, 2020-Ohio-705, 152 N.E.3d 528, ¶ 10 (6th
Dist.), quoting Knapp v. Knapp, 24 Ohio St.3d 141, 145, 493 N.E.2d 1353 (1986).
The trial court has discretion both in deciding a motion for relief from judgment
under Civ.R. 60(B) and in determining whether to hold an evidentiary hearing on
the motion. Kostoglou v. Fortuna, 8th Dist. Cuyahoga No. 107937, 2019-Ohio-5116,
¶ 21, citing Williams v. Wilson-Walker, 8th Dist. Cuyahoga No. 95392, 2011-Ohio-
1805, ¶ 7; GMAC Mtge., LLC v. Coleff, 8th Dist. Cuyahoga No. 98917, 2013-Ohio-
2462, ¶ 10. As such, we review a trial court’s ruling on a Civ.R. 60(B) motion for
abuse of discretion. Internatl. Total Servs. at ¶ 6, citing Bank of N.Y. v. Elliot, 8th
Dist. Cuyahoga Nos. 97506 and 98179, 2012-Ohio-5285, ¶ 25. A trial court abuses
its discretion where its decision is unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
A decision is unreasonable when “no sound reasoning process”
supports that decision. AAAA Ents. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). An abuse of discretion also occurs when a court “‘applies the wrong legal standard, misapplies
the correct legal standard, or relies on clearly erroneous findings of fact.’”
Franciscan Communities, Inc. v. Rice, 8th Dist. Cuyahoga No. 109889, 2021-Ohio-
1729, ¶ 33, quoting Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720,
892 N.E.2d 454, ¶ 15 (8th Dist.); see also Ockunzzi v. Smith, 8th Dist. Cuyahoga No.
102347, 2015-Ohio-2708, ¶ 9 (‘“Abuse of discretion’ is a term of art, describing a
judgment neither comporting with the record, nor reason.”); Huffman v. Hair
Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985) (‘“In order to have an
“abuse” in reaching such determination, the result must be so palpably and grossly
violative of fact and logic that it evidences not the exercise of will but perversity of
will, not the exercise of judgment but defiance thereof, not the exercise of reason but
rather of passion or bias.’”), quoting State v. Jenkins, 15 Ohio St.3d 164, 222, 473
N.E.2d 264 (1984).
Mezenski argues that the trial court abused its discretion in denying
his motion for relief from judgment without a hearing because his motion and
supporting materials set forth sufficient operative facts entitling him to relief from
judgment under Civ.R. 60(B)(5).
The trial court denied Mezenski’s motion on the ground that it lacked
jurisdiction “to grant the relief sought,” citing the Ohio Supreme Court’s decisions
in Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664, and Walsh, 157
Ohio St.3d 322, 2019-Ohio-3723, 136 N.E.3d 460. In Morris, the Ohio Supreme Court held that “a trial court does not
have jurisdiction under Civ.R. 60(B) to vacate or modify an award of spousal
support in a decree of divorce or dissolution when the decree does not contain a
reservation of jurisdiction to modify the award of * * * spousal support pursuant
to R.C. 3105.18(E).”1 Id. at ¶ 63. In that case, the appellant filed a motion for relief
from judgment pursuant to Civ.R. 60(B)(4) and/or (5) more than 11 years after the
parties’ dissolution was finalized. The dissolution decree incorporated a separation
agreement that required appellant to pay his ex-wife $1,300 a month in spousal
support for her lifetime. The separation agreement further provided that “[t]he
[c]ourt shall not have continuing jurisdiction on this subject.” Appellant requested
that the trial court vacate the spousal support award based on the fact that
appellant’s annual income had sharply decreased from about $100,000 at the time
of the dissolution to less than $4,000. Id. at ¶ 4-8.
1 R.C. 3105.18(E) states, in relevant part:
[I]f a continuing order for periodic payments of money as spousal support is entered in a divorce or dissolution of marriage action that is determined on or after January 1, 1991, the court that enters the decree of divorce or dissolution of marriage does not have jurisdiction to modify the amount or terms of the alimony or spousal support unless the court determines that the circumstances of either party have changed and unless one of the following applies: (1) In the case of a divorce, the decree or a separation agreement of the parties to the divorce that is incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support. (2) In the case of a dissolution of marriage, the separation agreement that is approved by the court and incorporated into the decree contains a provision specifically authorizing the court to modify the amount or terms of alimony or spousal support. The court held that “Civ.R. 60(B), a procedural rule, cannot override
the substantive law of R.C. 3105.18” and, therefore, “may not operate to vacate an
award of spousal support, because the only proper mechanism to modify such an
award is the substantive law — i.e., R.C. 3105.18.” Id. at ¶ 55, 57. The court
explained:
In R.C. 3105.18(E), the General Assembly has established the limits of a trial court’s jurisdiction to modify an award of spousal support. And a party’s request for modification falls within those statutory limits only if the parties agree or the court orders that jurisdiction be reserved. In other words, the trial court must first determine whether the decree of divorce or dissolution contains a reservation of jurisdiction. If the trial court lacks jurisdiction to modify, then the inquiry of the court ends there. To permit a trial court to exercise jurisdiction on the authority of Civ.R. 60(B) in the absence of a reservation of jurisdiction would make the force of the procedural rule greater in scope than the substantive right the General Assembly established in R.C. 3105.18(E). Because Civ.R. 60(B) is a procedural rule, it cannot override the substantive law of R.C. 3105.18(E). See Ohio Constitution, Article IV, Section 5(B).
***
In the case before us today, jurisdiction to modify the decree was not reserved in the trial court. Therefore, if * * * the trial court determined that appellant was entitled to relief under Civ.R. 60(B), then the court would be required to vacate the decree of dissolution and restore the marriage, which was terminated nearly 16 years ago. This would be antithetical to our principle of the finality of judgments, which ensures “certainty in the law and public confidence in the system's ability to resolve disputes.” * * *
It has been nearly 28 years since this court announced its holding in [Crouser v. Crouser, 39 Ohio St.3d 177, 529 N.E.2d 1251 (1988)] that Civ.R. 60(B), a procedural rule, cannot override the substantive law of R.C. 3105.18. Since that time, the General Assembly has not amended R.C. 3105.18(E) to confer upon the trial court jurisdiction to modify a continuing obligation of spousal support when there is fraud, mistake, or misrepresentation. Perhaps the General Assembly is not inclined to do so because it knows that under the statutory scheme that it has enacted, in an action for divorce, a trial court always has discretionary authority to order the inclusion of a modification provision, even when the parties have reached their own full or partial agreement * * *. Absent legislative action, the authority of Crouser stands.
Id. at ¶ 57, 59, 62.
In Walsh, 157 Ohio St.3d 322, 2019-Ohio-3723, 136 N.E.3d 460, the
Ohio Supreme Court considered the impact of R.C. 3105.171(I) on a trial court’s
ability to grant Civ.R. 60(B) relief with respect to the division of property set forth
in a final divorce decree. R.C. 3105.171(I) states that a property division made in a
divorce decree “is not subject to future modification by the court except upon the
express written consent or agreement to the modification by both spouses.” The
Walsh Court held that “[t]hough Morris dealt with spousal support, rather than a
property distribution, the same principle applies: Civ.R. 60(B) cannot be used to
alter the statutory requirements for the modification of a decree. Because R.C.
3105.171(I) does not permit modification absent the consent of both parties, Civ.R.
60(B) cannot provide a workaround.” Walsh at ¶ 23.
In Walsh, the trial court granted relief from judgment under Civ.R.
60(B) to modify a divorce decree that divided pension benefits even though both
parties had not agreed to the modification. In that case, the parties’ divorce decree,
which adopted a consent judgment of divorce, provided that the wife would receive
a share of the husband’s military pension based upon a marriage term of six years,
representing the period of time the parties had been together during the husband’s
military service. Id. at ¶ 1-5. The decree further provided that a consulting firm would prepare a qualified domestic relations order (“QDRO”) to implement the
pension division and that the trial court would retain jurisdiction over the QDRO.
Id. at ¶ 4-5. When the consultant attempted to draft the QDRO, it determined that
it could not draft a QDRO under which the wife would receive direct pension
payments from the military because the divorce decree did not specify the wife’s
share of the husband’s pension in percentage terms and because it did not comply
with the military’s “10/10 rule.” Under the “10/10 rule,” in order for a portion of a
service member’s pension benefits to be directly distributed to a former spouse, the
marriage must have lasted at least ten years and the service member must have
provided military service during those ten years. Id. at ¶ 5-8.
Approximately two years after the divorce decree was finalized, the
wife filed a motion for relief from judgment pursuant to Civ.R. 60(B)(4) and (5),
requesting that the court modify the divorce decree to reflect the percentage of the
husband’s pension to which she was entitled and “the parties’ actual date of marriage
and date of divorce, rather than the agreed upon dates which do not meet the 10/10
rule.” Id. at ¶ 9. The trial court granted the wife’s motion for Civ.R. 60(B) relief and
made two modifications to the divorce decree. The trial court stated that the
marriage term was ten years and that the wife was entitled to receive 15 percent of
the husband’s retirement benefits each month. Id. at ¶ 12. The husband appealed,
and the court of appeals affirmed. Id. at ¶ 12-13.
The Ohio Supreme Court reversed the trial court’s judgment,
concluding that “the trial court lacked jurisdiction to modify the length of the marriage stated in the divorce decree.” Id. at ¶ 16. The court held that by changing
the length of the marriage, the trial court had modified the divorce decree with
respect to a distribution of property. Because both parties did not consent to that
modification, the trial court had no authority to order the change pursuant to R.C.
3105.171(I). The court that stated Civ.R. 60(B) could not “provide a workaround” to
“alter the statutory requirements for modification of a decree.” Id. at ¶ 20, 23. The
court explained:
In addition to the Civ.R. 60(B) requirements for modification, the divorce and dissolution statutes contain certain statutory restrictions that limit the authority of a trial court to modify a final decree. See, e.g., R.C. 3105.171(I); R.C. 3105.18(E); R.C. 3105.63(A) and (C). Retirement benefits earned during the course of a marriage constitute marital property. * * * With respect to a modification of a property division, R.C. 3105.171(I) provides: “A division or disbursement of property or a distributive award made under this section is not subject to future modification by the court except upon the express written consent or agreement to the modification by both spouses.” (Emphasis added.) * * *
We have examined the interplay between Civ.R. 60(B) and the statutory provisions that relate to modification in a number of cases, most recently in Morris v. Morris, 148 Ohio St.3d 138, 2016-Ohio- 5002, 69 N.E.3d 664. * * *
Though Morris dealt with spousal support, rather than a property distribution, the same principle applies: Civ.R. 60(B) cannot be used to alter the statutory requirements for the modification of a decree. Because R.C. 3105.171(I) does not permit modification absent the consent of both parties, Civ.R. 60(B) cannot provide a workaround. * * * [W]e think it evident that the trial court’s order was a modification to the division of property and thus was required to comply with R.C. 3105.171(I). Walsh at ¶ 19, 21, 23, 26;2 see also Williams v. Williams, 1st Dist. Hamilton No. C-
210331, 2022-Ohio-599, ¶ 12-18 (where husband did not consent to wife’s requested
changes to divorce decree, trial court had no authority, pursuant to R.C. 3105.171(I),
to modify the divorce decree; wife could not use Civ.R. 60(B) to “circumvent” R.C.
3105.171(I)); Ruple v. Ruple, 11th Dist. Lake No. 2021-L-027, 2021-Ohio-2884, ¶ 12
(because the parties did not authorize trial court to modify separation agreement
incorporated into dissolution decree, modification was precluded by statute, and
2 The Morris Court further held that, “in accordance with our precedents,” “if the parties’ separation agreement, incorporated into a decree of dissolution, reserves the jurisdiction of the court to modify, a party is limited to seeking relief from judgment under Civ.R. 60(B)(1), (2), or (3); a litigant may not seek relief from the decree under Civ.R. 60(B)(4) or (5).” Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664, at ¶ 63, citing Knapp, 24 Ohio St.3d 141, 493 N.E.2d 1353, at paragraph two of the syllabus, and In re Whitman, 81 Ohio St.3d 239, 245, 690 N.E.2d 535 (1998). Similarly in Walsh, the court held:
Our caselaw makes clear that even when a decree reserves jurisdiction for the court to modify the parties’ agreement, a court may not grant relief under Civ.R. 60(B)(4) or (5); rather it is limited to granting relief under Civ.R. 60(B)(1), (2), and (3) — all of which require the motion to be filed within one year from the date of the judgment. * * * We have explained that a contrary rule would “relieve a litigant from the consequences of his voluntary, deliberate choice” to enter into an agreement. Knapp v. Knapp, 24 Ohio St.3d 141, 493 N.E.2d 1353 (1986), paragraph two of the syllabus; see Morris at ¶ 38-41. Further, allowing such motions would be “antithetical to our principle of the finality of judgments,” Id. at ¶ 59 and encourage mischief by allowing those with the resources to do so “to bury their ex-spouses in a mountain of filings,” Id. at ¶ 60. Thus, even if we were to conclude that R.C. 3105.171(I) did not apply, the trial court still lacked authority to modify the divorce decree.
Walsh at ¶ 28. However, the Walsh Court noted that after Whitman was decided, R.C. 3107.171(I) was amended to require “express written consent or agreement to the modification by both spouses.” (Emphasis added.) Because the issue was not before the court, it “express[ed] no opinion * * * as to whether a reservation of jurisdiction would be a sufficient basis to allow a court to modify a property division via Civ.R. 60(B)(1), (2), or (3) under the current statutory scheme.” Walsh at ¶ 28, fn. 3. Civ.R. 60(B) could not “be used as ‘a workaround’”). But see Quesinberry v.
Quesinberry, 2d Dist. Montgomery No. 29192, 2022-Ohio-635, ¶ 17-47
(distinguishing Walsh on the ground that it “did not involve an attempt to use Civ.R.
60(B) to vacate an entire divorce or dissolution decree” and holding that the entire
dissolution decree was “subject to being vacated” under Civ.R. 60(B)(1) where the
parties’ mutual mistake regarding wife’s entitlement to spousal and child support
“means that there was no meeting of the minds and no valid contract on which to
base the dissolution decree”); Ouellette, 2020-Ohio-705, 152 N.E.3d 528, at ¶ 8, 32-
33, 44 (finding “no prohibition” within R.C. 3105.171(I) “to a court’s vacation of the
entire property order or the decree, as appropriate under Civ.R. 60(B)(1), (2), or
(3),” and holding that where a party “demonstrates facts that challenge the very
formation of a consent decree, a motion for relief under Civ.R. 60(B)(1) is
appropriate” and trial court had jurisdiction to consider Civ.R. 60(B)(1) motion
requesting that the trial court vacate, rather than modify, property order or decree,
“even if the remedy of modification was improperly ordered”).
Mezenski argued below that because Karen was incompetent at the
time of the divorce decree and because “it is no longer equitable to enforce the
judgment entry of divorce,” the judgment entry of divorce “must be vacated so this
matter may be heard and decided upon its merits.” Mezenski did not contend that
divorce was not warranted based on the parties’ incompatibility, as found by the trial
court. He challenged only the trial court’s division of property and spousal support award and sought to have the divorce decree vacated so that a more equitable
property division and spousal support award could be entered.
Mezenski argues that Morris and Walsh do not apply here because in
those cases, “the parties had entered into an agreement” and “there were no
allegations that one party, who was unrepresented, was incompetent at the time the
divorce was granted.” However, nothing in either of those cases appears to limit
their holdings that Civ.R. 60(B) cannot be used to circumvent the statutory
requirements of R.C. 3105.18(E) and 3105.171(I) to instances in which the divorce
decree or dissolution decree incorporated an agreement of the parties. In each of
those cases, the court held that a trial court had no “authority” or “jurisdiction” to
modify a spousal support award or property division in a divorce decree or
dissolution decree without compliance with the applicable statute, R.C. 3105.18(E)
or 3105.171(I), i.e., absent a reservation of jurisdiction in the decree or the express
written consent or agreement to the modification by both spouses.
In this case, as in Morris and Walsh, there was no reservation of
jurisdiction in the divorce decree and no express written consent or agreement to
the modification by both spouses. Indeed, the divorce decree not only does not
contain a reservation of jurisdiction but expressly states, with respect to the spousal
support award, that “[t]he [c]ourt shall not retain jurisdiction to modify this order.”
Further, even if Morris and Walsh were distinguishable from this case based on the
nature of the relief requested — i.e., requesting that the divorce decree be vacated in its entirety — or the circumstances giving rise to the claim for relief — i.e., Karen’s
alleged incompetency — we would still find no reversible error here.
This is not a case in which the trial court could grant the relief sought
by Mezenski, i.e., rehearing the case on the merits and ordering a more “equitable”
property division and spousal support award, by granting his Civ.R. 60(B) motion.
Even if Morris and Walsh did not preclude the trial court from vacating the divorce
decree in its entirety based on Karen’s alleged incompetency, this is not a case that
could then be “decided on its merits,” i.e., the trial court could not have considered
new evidence and entered a new divorce decree (setting forth a different property
division and spousal support award), if the trial court were to have vacated the
August 24, 2018 divorce decree under Civ.R. 60(B), because Daniel is now deceased.
Daniel died on May 28, 2020, nearly a year before Mezenski filed his
Civ.R. 60(B) motion. “It is axiomatic that an action for divorce abates and cannot
be revived when one of the parties thereto dies.” Diemer v. Diemer, 99 Ohio App.3d
54, 59, 649 N.E.2d 1285 (8th Dist.1994); see also Durgin v. Durgin, 8th Dist.
Cuyahoga No. 98888, 2013-Ohio-1897, ¶ 13 (“‘[T]he death of a party prior to
adjudication of the issues in a pending divorce case causes the action to abate and
ends any jurisdiction that a judge has over the case except to dismiss it.”’), quoting
Concepcion v. Concepcion, 131 Ohio App.3d 271, 275-276, 722 N.E.2d 176 (3d
Dist.1999), citing Coffman v. Finney, 65 Ohio St. 61, 61 N.E. 155 (1901); State ex rel.
Litty v. Leskovyansky, 77 Ohio St.3d 97, 99-102, 671 N.E.2d 236 (1996) (granting
wife a writ of prohibition to prevent domestic relations judge from continuing with further proceedings in divorce case after husband’s death on the basis that
husband’s death ended any jurisdiction that the court had over the divorce case
except to dismiss it); Porter v. Lerch, 129 Ohio St. 47, 56, 193 N.E.766 (1934)
(“[W]here one or both parties to a divorce action die before a final decree of divorce,
the action abates and there can be no revival. Circumstances have accomplished the
object sought.”).
While the trial court retained jurisdiction, following Daniel’s death, to
“enforce” the rights and obligations “already fixed” by the divorce decree, it lacked
jurisdiction to order or impose new rights or obligations. See, e.g., Durgin at ¶ 16-
17 (“while an action termed ‘personal,’ such as for divorce or for determination and
order of an alimony award, abated upon the death of one party to the action, an
action that sought to enforce fixed rights and liabilities, such as an action to enforce
alimony already awarded, survives the death of that party”) (emphasis deleted),
citing Coffman, 65 Ohio St. 61, 61 N.E. 155; see also Diemer at 59-63 (where divorce
action abated upon plaintiff’s death before the domestic relations court determined
any issues, probate court, rather than domestic relations court, possessed
jurisdiction to determine rights and liabilities of parties with respect to antenuptial
agreement).
Because Daniel had died, if the August 24, 2018 divorce decree were
to be vacated, the trial court could no longer exercise jurisdiction over the divorce
action and grant the relief — a new property division and spousal support award —
sought by Mezenski. Accordingly, we cannot say that the trial court abused its discretion in denying Mezenski’s Civ.R. 60(B) motion on the ground that it was
“without jurisdiction to grant the relief sought.”
Furthermore, even if the trial court could otherwise grant Mezenski
the relief he requested, we would still find that the trial court did not abuse its
discretion in denying Mezenski’s motion for relief from judgment because he did not
present sufficient allegations of operative facts in his motion and supporting
materials establishing grounds for relief under Civ.R. 60(B)(5) or his entitlement to
an evidentiary hearing on the motion.
Civ.R. 60(B)(5) is a “catchall provision” that reflects the “inherent
power of a court to relieve a person from the unjust operation of a judgment.”
Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983), paragraph
one of the syllabus. It cannot be used as a substitute for any of the more specific
provisions of Civ.R. 60(B). See, e.g., id.; State Farm Mut. Auto. Ins. Co. v. Williams,
8th Dist. Cuyahoga No. 107951, 2019-Ohio-4059, ¶ 43. The grounds for relief under
Civ.R. 60(B)(5) “must be substantial.” Caruso-Ciresi at paragraph two of the
syllabus. Civ.R. 60(B)(5) is to be used “only in extraordinary and unusual cases
when the interests of justice warrant it.” Render v. Belle, 8th Dist. Cuyahoga No.
93181, 2010-Ohio-2344, ¶ 13-14. A motion for relief from judgment under Civ.R.
60(B)(5) must contain operative facts that would warrant relief from judgment
under Civ.R. 60(B)(5). Caruso-Ciresi at 66; Render at ¶ 12. “Broad, conclusory
statements do not satisfy the requirement that a Civ.R. 60(B) motion must be
supported by operative facts that would warrant relief from judgment.” Natl. Collegiate Student Loan Trust 2007-2 v. Tigner, 2d Dist. Montgomery Nos. 27841
and 28035, 2018-Ohio-4442, ¶ 22.
A party moving for relief from judgment under Civ.R. 60(B) is not
automatically entitled to an evidentiary hearing. PNC Bank, N.A. v. DePalma, 8th
Dist. Cuyahoga No. 97566, 2012-Ohio-2774, ¶ 12. The moving party bears the
burden of proving entitlement to a hearing on the motion. See, e.g., Esplandiu v.
Esplandiu, 8th Dist. Cuyahoga No. 104750, 2017-Ohio-5744, ¶ 13; Adomeit v.
Baltimore, 39 Ohio App.2d 97, 103-105, 316 N.E.2d 469 (8th Dist.1974). ‘““If the
movant files a motion for relief from judgment and it contains allegations of
operative facts which would warrant relief under Civil Rule 60(B), the trial court
should grant a hearing to take evidence and verify these facts before it rules on the
motion.’”’ Kostoglou, 2019-Ohio-5116, at ¶ 37, quoting Coulson v. Coulson, 5 Ohio
St.3d 12, 16, 448 N.E.2d 809 (1983), quoting Adomeit at 105.
“[T]he party’s factual materials must, on the face, demonstrate
timeliness, a reason why the motion should be granted, and a meritorious defense.”
Esplandiu at ¶ 13, citing Danforth v. Danforth, 8th Dist. Cuyahoga No. 86693,
2006-Ohio-2890, ¶ 14. “If the party fails to demonstrate any one of those elements
the trial court need not hold an evidentiary hearing.” Esplandiu at ¶ 13, citing
Adomeit at 105 (“If the material submitted by the movant in support of its motion
contains no operative facts or meager and limited facts and conclusions of law, it
will not be an abuse of discretion for the trial court to refuse to grant a hearing and
overrule the motion.”); see also Kostoglou at ¶ 37-38 (where appellants failed to attach an affidavit “attesting to the blanket assertions in their motion for relief from
judgment,” trial court did not abuse its discretion in denying appellants’ motion for
relief from judgment without a hearing). A 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.” Kay
v. Marc Glassman, 76 Ohio St.3d 18, 19, 665 N.E.2d 1102 (1996), citing Adomeit at
103, 105.
Mezenski contends that he presented “a colorable claim” and
“arguable grounds for relief,” entitling him to a hearing on his Civ.R. 60(B) motion,
based on: (1) his assertions in his motion that Karen and Daniel had been married
for 25 years, that Karen “had been in an assisted living facility for one and a half (1
1/2) years at the time the divorce was granted” and did not file an answer to the
divorce complaint or appear for the hearing; (2) the two statements of expert
evaluation he submitted in support of his motion, which he contends shows that
Karen “had severe dementia” and “was not capable of managing her daily affairs”;
(3) the magistrate’s decision and related court order in the probate court action
establishing a guardianship for Karen in October 2020 and (4) his assertions in his
motion regarding why it took more than two-and-one-half years to file a motion to
vacate the divorce decree. We disagree.
First, Mezenski’s argument essentially seems to be that Daniel
committed a fraud by seeking a divorce from Karen, knowing that she was
incompetent, without advising the court that she was incompetent, and thereby obtained a disproportionate share of the marital estate and avoided paying an
appropriate amount of spousal support. See appellant’s brief at 11 (“It is clear that
[a]ppellee committed a fraud upon the [c]ourt by not disclosing [a]ppellant was
incompetent.”). Motions for relief from judgment based on fraud of an adverse
party, however, must be filed within one year of the judgment. Civ.R. 60(B); GTE
Automatic, 47 Ohio St.2d 146, 351 N.E.2d 113, at paragraph two of the syllabus.
Second, as detailed above, Mezenski submitted four exhibits in
support of his motion. He submitted no affidavits in support of his motion. The
only document Mezenski submitted that even arguably relates to Karen’s alleged
incompetency at the time of the divorce proceedings is part of exhibit No. 4 — a copy
of a statement of expert evaluation on Probate Court Form 17.1, signed by an
unidentified “evaluator” on September 3, 2020, purportedly relating to an
evaluation of Karen on December 7, 2017. The form states, “The Statement of
Evaluation does not declare the individual competent or incompetent, but is
evidence to be considered by the [c]ourt.” There is no time stamp or other indication
that the document was filed with or otherwise submitted to the probate court.
As completed, the document indicates that Karen is “mentally
impaired,” has “severe” “[m]ental [r]etardation/[d]evelopmental [d]isabilities” and
had been diagnosed with Parkinson’s disease with dementia. The statement further
indicates that Karen takes various medications and is wheelchair bound, that Karen
has “episodes of alertness, some excessive daytime sleepiness, some hallucinations”
and that Karen was not believed to be capable of caring for her “activities of daily living,” making decisions regarding “medical treatments, living arrangements and
diet” or managing her finances and property. No “indications of abuse, neglect or
exploitation” were noted. Although the statement, as completed, indicates that the
evaluation was performed at the Cleveland Clinic on December 7, 2017, the line on
which the “[n]ame & [t]itle/[p]rofession” of the individual completing the form was
to be identified is blank, and the handwriting of the individual who completed the
responses to the questions on the form clearly does not match that of the
unidentified evaluator who signed the form nearly three years later on September 3,
2020.
Further, as noted above, although Mezenski contends that Karen was
not competent at the time of the divorce proceedings, he does not dispute that the
trial court properly granted the parties a divorce on grounds of incompatibility.
Mezenski sought to have the divorce decree vacated because he believes the property
division and spousal support award were inequitable. However, Mezenski’s motion
and supporting materials do not contain any operative facts demonstrating that the
property division or $144,000 in spousal support awarded was inequitable.
As discussed above, the trial court’s August 24, 2018 divorce decree
divided the parties’ “separate property, marital property and debts acquired during
the marriage.” The transcript from the hearing was not included in the record on
appeal. Accordingly, it is unknown what evidence was presented at the divorce
hearing regarding the property division and award of spousal support. Simply
because the property division was not equal does not mean it was not equitable. As noted above, the trial court expressly stated in the divorce decree that the division
of property, “though not equal, is equitable” because the marriage was “a second
marriage for both” parties and “a significant portion” of Daniel’s IRA was
“premarital.” Other than the portion of Daniel’s IRA, which the trial court
specifically referenced as being “premarital” property, it is unknown to what extent
any of the assets divided by the trial court were determined to be separate property
rather than marital property.
Mezenski has not shown that the trial court abused its discretion in
denying his motion for relief from judgment pursuant to Civ.R. 60(B)(5) without a
hearing. Accordingly, we overrule his first and third assignments of error.
Finally, Mezenski claims that the trial court abused its discretion in
failing to appoint a guardian ad litem to protect Karen’s interests in the divorce
proceedings due to her incompetency, pursuant to Civ.R. 17(B). That rule provides,
in relevant part:
When a[n] * * * incompetent person is not otherwise represented in an action the court shall appoint a guardian ad litem or shall make such other order as it deems proper for the protection of such minor or incompetent person.
Civ.R. 17(B) authorizes a court to appoint a guardian ad litem for the
protection of an individual who is incompetent.3 ‘“The trial court’s obligation to
3 R.C. 2111.01(D) defines an “incompetent” person as one who is “so mentally impaired, as a result of a mental or physical illness or disability, as a result of intellectual disability, or as a result of chronic substance abuse, that the person is incapable of taking proper care of the person’s self or property or fails to provide for the person’s family or other persons for whom the person is charged by law to provide” or one who is “confined to a correctional institution within this state.” appoint a guardian or other representative, or make some other proper order, arises
when the court determines that a minor or incompetent person is not otherwise
represented.’” Gallion v. Gallion, 10th Dist. Franklin No. 17AP-556, 2018-Ohio-
3060, ¶ 20, quoting State v. Kendrick, 10th Dist. Franklin No. 98AP-1305, 1999
Ohio App. LEXIS 4622 (Sept. 30, 1999), citing In re Guardianship of Carter, 10th
Dist. Franklin No. 90AP-755, 1991 Ohio App. LEXIS 586 (Feb. 8, 1991). But see
Thomasson v. Thomasson, 153 Ohio St.3d 398, 403, 2018-Ohio-2417, 106 N.E.3d
1239, ¶ 21, 36 (trial court’s order treating appellant as though she had been
adjudicated incompetent and appointing a guardian ad litem to represent her
interests in divorce case that “was not preceded by an adjudication of incompetency,
prior notice, and any opportunity to be heard on the issue” violated appellant’s right
to due process; “Civ.R. 17(B) permits the trial court to appoint a GAL to represent
an adult only when the court has adjudicated the adult to be incompetent.”).
In this case, there is nothing to indicate that Karen had been
adjudicated incompetent at the time of the divorce proceedings. Even assuming
Karen was incompetent at that time and, even assuming, as Mezenski argues, that
the trial court had “an affirmative duty to investigate any reasonable indication that
a pro se party to a lawsuit may be mentally incompetent,” the trial court would have
had no way of knowing that Karen could be incompetent. Karen did not appear
during the divorce proceedings, and no one advised the trial court that there could
be an issue with her competency. Simply because Karen, who was then 67, was living
at Brookdale Westlake Village, a senior living community, at the time of the divorce proceedings would not reasonably lead the trial court to believe she was
incompetent. Accordingly, the trial court did not abuse its discretion or otherwise
err in failing to appoint a guardian ad litem to protect Karen’s interests during the
divorce proceedings. Mezenski’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
It is ordered that a special mandate be sent to the Cuyahoga County Common
Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and CORNELIUS J. O’SULLIVAN, JR., J., CONCUR