[Cite as Simmons v. Simmons, 2012-Ohio-4164.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97975
BEVERLY A. SIMMONS PLAINTIFF-APPELLEE
vs.
MICHAEL D. SIMMONS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Civil Appeal from the Domestic Relations Division of the Cuyahoga County Court of Common Pleas Case No. D-284429
BEFORE: Keough, J., Sweeney, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: September 13, 2012 ATTORNEY FOR APPELLANT
Lou D’Amico Argie, D’Amico & Vitantonio 6449 Wilson Mills Road Mayfield Village, OH 44143
ATTORNEY FOR APPELLEE
Dean W. Van Dress Van Dress Legal Group Co., LLC The Bank of Berea Building 46 Front Street Berea, OH 44017 KATHLEEN ANN KEOUGH, J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1.
{¶2} Defendant-appellant, Michael Simmons, appeals from an order of the trial
court denying his Civ.R. 60 motion for relief from judgment without conducting a
hearing. For the reasons that follow, we affirm.
{¶3} On September 9, 2004, the final divorce decree of appellant and
plaintiff-appellee, Beverly Simmons n.k.a. Steele was filed. Seven years, later on
December 5, 2011, appellant filed a Civ.R. 60(B) motion for relief from judgment
contending that appellee failed to disclose approximately $50,000 during the parties’
divorce proceedings; thus, creating fraud upon the court and resulting in the appellee
being unjustly enriched. The trial court denied appellant’s motion without conducting a
hearing, reasoning that appellant’s motion was untimely. Appellant appeals this
decision, raising the denial of his motion as his sole assignment of error.
{¶4} A court’s decision regarding a motion for relief from judgment under Civ.R.
60(B) is reviewed for an abuse of discretion. Strack v. Pelton, 70 Ohio St.3d 172, 174,
1994-Ohio-107, 637 N.E.2d 914. An abuse of discretion implies that the court’s attitude
is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983). {¶5} To prevail on a motion brought under Civ.R. 60(B), the movant must
demonstrate that he is entitled to relief pursuant to one of the enumerated grounds of
Civ.R. 60(B), that he has a meritorious defense or claim to present if relief is granted, and
that he brought his motion within the applicable time limit of Civ.R. 60(B). GTE
Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976),
paragraph two of the syllabus. A failure to establish any one of the foregoing
circumstances is ordinarily fatal to a Civ.R. 60(B) motion. See Rose Chevrolet, Inc. v.
Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988) (stating that the trial court should
overrule a Civ.R. 60(B) motion if the movant fails to meet any one of the foregoing three
requirements); GTE at 151 (the three requirements are “conjunctive”).
{¶6} A person filing a motion for relief from judgment under Civ.R. 60(B) is not
automatically entitled to such relief nor to a hearing on the motion. Adomeit v. Baltimore,
39 Ohio App.2d 97, 105, 316 N.E.2d 469, (8th Dist.1974). The movant has the burden
of proving that he is entitled to the relief requested or to a hearing on the motion. Id.
The movant must submit factual material that on its face demonstrates the timeliness of
the motion, reasons why the motion should be granted, and that he has a meritorious
claim or defense. Id.; Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 1996-Ohio-430,
665 N.E.2d 1102.
{¶7} In this case, appellant moved for relief from judgment pursuant to Civ.R.
60(B)(5) — “any other reason justifying relief from the judgment” — alleging that
appellee concealed approximately $50,000 during their divorce proceedings and that he did not discover the purported concealment until September 2010. This court has
recognized that claims involving either the non-disclosure or false disclosure of income or
assets in domestic relations cases may state a claim for relief from judgment under Civ.R.
60(B)(5) in appropriate circumstances. See, e.g., Offenberg v. Offenberg, 8th Dist. No.
71538, 1998 Ohio App. LEXIS 2342 (May 28, 1998). Accordingly, because fraud is a
potentially valid defense, appellant could be entitled to relief from judgment if his Civ.R.
60(B) motion was timely filed.
{¶8} Although a motion filed pursuant to Civ.R. 60(B)(5) is not subject to the
one-year limitation, it must be filed within a “reasonable time.” GTE, 47 Ohio St.2d 146,
351 N.E.2d 113 (1976), paragraph two of the syllabus. The movant has the burden of
presenting evidentiary materials demonstrating that the motion was filed within a
“reasonable time.” Youssefi v. Youssefi, 81 Ohio App.3d 49, 53, 610 N.E.2d 455 (9th
Dist.1991). What constitutes a reasonable time is dependent upon the facts and
circumstances of any particular case. Cautela Bros. Cement Contrs. v. McFadden, 32
Ohio App.2d 329, 332, 291 N.E.2d 539 (10th Dist.1972). Settlement negotiations may
extend the time normally considered reasonable. Id. Timeliness is an issue that is left to
the discretion of the trial court, and each case must be decided on its own merits. Second
Natl. Bank of Warren v. Courthouse Square Realty, Ltd., 11th Dist. No. 92-T-4774, 1994
Ohio App. LEXIS 4887 (Oct. 28, 1994).
{¶9} In this case, the trial court denied appellant’s Civ.R. 60(B) motion for relief
from judgment finding that he had not satisfied his burden of demonstrating that the motion was made within a reasonable amount of time. The trial court stated that if
appellant’s motion were timely, a full hearing would have been needed. Therefore, the
issue before this court is whether the trial court’s determination that appellant’s motion
was not made within a reasonable amount of time under the circumstances was so
unreasonable, arbitrary, or unconscionable as to constitute an abuse of discretion. We
find that it was not.
{¶10} Appellant filed his motion approximately 15 months after he discovered
appellee’s purported non-disclosure of assets, which was approximately seven years after
the final judgment entry of divorce was filed. In his motion, appellant explained that
shortly after he discovered the purported non-disclosure, “the parties began
communicating about the issues presented herein. When those efforts ultimately failed
to result in a resolution, Defendant was left with no choice but to seek the Court’s
assistance as set forth herein.”
{¶11} The record before this court demonstrates that appellant knew as of June 21,
2011, when his attorney received correspondence from appellee’s attorney that no money
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[Cite as Simmons v. Simmons, 2012-Ohio-4164.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97975
BEVERLY A. SIMMONS PLAINTIFF-APPELLEE
vs.
MICHAEL D. SIMMONS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Civil Appeal from the Domestic Relations Division of the Cuyahoga County Court of Common Pleas Case No. D-284429
BEFORE: Keough, J., Sweeney, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: September 13, 2012 ATTORNEY FOR APPELLANT
Lou D’Amico Argie, D’Amico & Vitantonio 6449 Wilson Mills Road Mayfield Village, OH 44143
ATTORNEY FOR APPELLEE
Dean W. Van Dress Van Dress Legal Group Co., LLC The Bank of Berea Building 46 Front Street Berea, OH 44017 KATHLEEN ANN KEOUGH, J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1.
{¶2} Defendant-appellant, Michael Simmons, appeals from an order of the trial
court denying his Civ.R. 60 motion for relief from judgment without conducting a
hearing. For the reasons that follow, we affirm.
{¶3} On September 9, 2004, the final divorce decree of appellant and
plaintiff-appellee, Beverly Simmons n.k.a. Steele was filed. Seven years, later on
December 5, 2011, appellant filed a Civ.R. 60(B) motion for relief from judgment
contending that appellee failed to disclose approximately $50,000 during the parties’
divorce proceedings; thus, creating fraud upon the court and resulting in the appellee
being unjustly enriched. The trial court denied appellant’s motion without conducting a
hearing, reasoning that appellant’s motion was untimely. Appellant appeals this
decision, raising the denial of his motion as his sole assignment of error.
{¶4} A court’s decision regarding a motion for relief from judgment under Civ.R.
60(B) is reviewed for an abuse of discretion. Strack v. Pelton, 70 Ohio St.3d 172, 174,
1994-Ohio-107, 637 N.E.2d 914. An abuse of discretion implies that the court’s attitude
is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983). {¶5} To prevail on a motion brought under Civ.R. 60(B), the movant must
demonstrate that he is entitled to relief pursuant to one of the enumerated grounds of
Civ.R. 60(B), that he has a meritorious defense or claim to present if relief is granted, and
that he brought his motion within the applicable time limit of Civ.R. 60(B). GTE
Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976),
paragraph two of the syllabus. A failure to establish any one of the foregoing
circumstances is ordinarily fatal to a Civ.R. 60(B) motion. See Rose Chevrolet, Inc. v.
Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988) (stating that the trial court should
overrule a Civ.R. 60(B) motion if the movant fails to meet any one of the foregoing three
requirements); GTE at 151 (the three requirements are “conjunctive”).
{¶6} A person filing a motion for relief from judgment under Civ.R. 60(B) is not
automatically entitled to such relief nor to a hearing on the motion. Adomeit v. Baltimore,
39 Ohio App.2d 97, 105, 316 N.E.2d 469, (8th Dist.1974). The movant has the burden
of proving that he is entitled to the relief requested or to a hearing on the motion. Id.
The movant must submit factual material that on its face demonstrates the timeliness of
the motion, reasons why the motion should be granted, and that he has a meritorious
claim or defense. Id.; Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 1996-Ohio-430,
665 N.E.2d 1102.
{¶7} In this case, appellant moved for relief from judgment pursuant to Civ.R.
60(B)(5) — “any other reason justifying relief from the judgment” — alleging that
appellee concealed approximately $50,000 during their divorce proceedings and that he did not discover the purported concealment until September 2010. This court has
recognized that claims involving either the non-disclosure or false disclosure of income or
assets in domestic relations cases may state a claim for relief from judgment under Civ.R.
60(B)(5) in appropriate circumstances. See, e.g., Offenberg v. Offenberg, 8th Dist. No.
71538, 1998 Ohio App. LEXIS 2342 (May 28, 1998). Accordingly, because fraud is a
potentially valid defense, appellant could be entitled to relief from judgment if his Civ.R.
60(B) motion was timely filed.
{¶8} Although a motion filed pursuant to Civ.R. 60(B)(5) is not subject to the
one-year limitation, it must be filed within a “reasonable time.” GTE, 47 Ohio St.2d 146,
351 N.E.2d 113 (1976), paragraph two of the syllabus. The movant has the burden of
presenting evidentiary materials demonstrating that the motion was filed within a
“reasonable time.” Youssefi v. Youssefi, 81 Ohio App.3d 49, 53, 610 N.E.2d 455 (9th
Dist.1991). What constitutes a reasonable time is dependent upon the facts and
circumstances of any particular case. Cautela Bros. Cement Contrs. v. McFadden, 32
Ohio App.2d 329, 332, 291 N.E.2d 539 (10th Dist.1972). Settlement negotiations may
extend the time normally considered reasonable. Id. Timeliness is an issue that is left to
the discretion of the trial court, and each case must be decided on its own merits. Second
Natl. Bank of Warren v. Courthouse Square Realty, Ltd., 11th Dist. No. 92-T-4774, 1994
Ohio App. LEXIS 4887 (Oct. 28, 1994).
{¶9} In this case, the trial court denied appellant’s Civ.R. 60(B) motion for relief
from judgment finding that he had not satisfied his burden of demonstrating that the motion was made within a reasonable amount of time. The trial court stated that if
appellant’s motion were timely, a full hearing would have been needed. Therefore, the
issue before this court is whether the trial court’s determination that appellant’s motion
was not made within a reasonable amount of time under the circumstances was so
unreasonable, arbitrary, or unconscionable as to constitute an abuse of discretion. We
find that it was not.
{¶10} Appellant filed his motion approximately 15 months after he discovered
appellee’s purported non-disclosure of assets, which was approximately seven years after
the final judgment entry of divorce was filed. In his motion, appellant explained that
shortly after he discovered the purported non-disclosure, “the parties began
communicating about the issues presented herein. When those efforts ultimately failed
to result in a resolution, Defendant was left with no choice but to seek the Court’s
assistance as set forth herein.”
{¶11} The record before this court demonstrates that appellant knew as of June 21,
2011, when his attorney received correspondence from appellee’s attorney that no money
would be paid to appellant and any additional pursuit of the matter would result in a
request for sanctions, that no resolution would been reached in this matter. Nevertheless,
an additional six months passed before appellant filed his Civ.R. 60(B) motion for relief
from judgment. This additional delay of six months following receipt of the June 21
letter was unexplained and thus unreasonable. While settlement negotiations may extend
the time normally considered reasonable depending upon the circumstances of a particular case, once those negotiations fail, the unexplained delay of the passage of more time
becomes increasingly unreasonable.
{¶12} Accordingly, we find that the trial court did not abuse its discretion in
denying appellant’s Civ.R. 60(B) motion for relief from judgment. The assigned error is
overruled.
{¶13} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
KATHLEEN ANN KEOUGH, JUDGE
JAMES J. SWEENEY, P.J., and KENNETH A. ROCCO, J., CONCUR