In re A.K.
2011 Ohio 4536
Ohio Ct. App.2011Background
- Kinter appeals the trial court's denial of Civ.R. 60(B) relief from a judgment granting Boltz custody of three children.
- The underlying custody dispute culminated in a July 24, 2009 judgment awarding Boltz legal custody and granting Kinter visitation.
- Kinter filed a pro se Civ.R. 60(B) motion on December 14, 2010, alleging fraud by Boltz and by the court.
- The trial court denied the motion as untimely, citing a one-year limit for fraud-based Civ.R. 60(B)(3) motions.
- The court distinguished between fraud between the parties (60(B)(3)) and fraud upon the court (60(B)(5)).
- The appellate court affirmed, concluding the motion was untimely or not entitled to relief under 60(B)(5) and rejecting recusal arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under Civ.R. 60(B) | Kinter contends relief is available under 60(B)(5) if fraud upon the court occurred. | Boltz argues 60(B)(3) applies to fraud between parties and was untimely; 60(B)(5) requires reasonable time. | Relief denied; timeliness and grounds barred. |
| Fraud type authority under 60(B) | Fraud by court officers constitutes fraud upon the court warranting relief. | Fraud by Boltz is between the parties, not fraud upon the court. | Fraud upon the court may be relief under 60(B)(5); court considered both theories. |
| Reasonableness of delay | Fraud may be raised at any time when it concerns the court’s integrity. | Kinter waited nearly 17 months after judgment, which is unreasonable. | Delay was not reasonable; relief denied. |
| Recusal/Disqualification | Magistrate and judge bias and prior involvement warrant recusal and vacation of judgment. | Any bias should have been raised on appeal; independent de novo review cured improper influence. | No basis for relief; appearances of impropriety insufficient to overcome final judgment. |
Key Cases Cited
- Coulson v. Coulson, 5 Ohio St.3d 12 (Ohio 1983) (distinguishes fraud upon the court (60(B)(5)) from fraud between parties (60(B)(3)))
- Volodkevich v. Volodkevich, 35 Ohio St.3d 152 (Ohio 1988) (appearances of impropriety may support 60(B)(5) relief; independent review cures bias)
- Doe v. Trumbull County Children Services Bd., 28 Ohio St.3d 128 (Ohio 1986) (Civ.R. 60(B) relief not available as a substitute for appeal)
- DeWitt v. Myers, 2009-Ohio-807 (Ohio) (trial court must independently review objections on 60(B) when alleged judicial bias exists)