Melinich v. Melinich
960 N.E.2d 544
Ohio Ct. App.2011Background
- Melinich divorce finalized July 12, 2006; final decree included a joint Sallie Mae student loan for both parties, balance $30,362.47, in forbearance until January 2007.
- Decree required the loan to be divided into two separate accounts; if division could not be done, each party to pay half the total monthly amount until paid.
- Wendy, pro se, moved to hold Alphonse in contempt for failure to pay; contempt hearings held in 2008; magistrate overruled contempt in May 2008.
- Trial court adopted magistrate’s decision in May 2009; Wendy sought Civ.R. 60(B) relief from judgment in August 2009.
- Magistrate granted 60(B) relief in December 2009, finding Alphonse in contempt but suspending jail conditional on paying his share and arrearage of $2,993.79.
- Trial court adopted the magistrate’s 60(B) relief decision in November 2010; Alphonse appealed in December 2010.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Civ.R.60(B) relief can substitute for a direct appeal | Wendy relied on 60(B) motion to challenge judgment rather than appeal. | 60(B) relief should not substitute for direct appeal and is improper to challenge trial judgment. | Civ.R.60(B) cannot substitute for a direct appeal. |
| Whether a pre-hearing determination on 60(B) should occur before an evidentiary 60(B) hearing | A separate pre-hearing on 60(B) merits was required before any evidentiary proceeding. | No separate pre-hearing was required; merits addressed at the 60(B) hearing. | No separate pre-hearing was required; merits heard at the 60(B) proceeding. |
| Whether the 60(B) relief was proper on surprise basis | Exhibit 1-A shown at hearing constituted newly discovered evidence; Wendy was surprised. | Exhibit 1-A was irrelevant to the joint loan; Wendy was not surprised by relevant evidence. | Relief proper; Exhibit 1-A was irrelevant, but Wendy established surprise due to unrelated document. |
| Whether evidence not in the first hearing transcript was properly considered at the 60(B) hearing | Only evidence from the first hearing should be considered. | Additional proper evidence could be presented at the 60(B) hearing. | Evidence not limited to the transcript was properly considered; proceedings supported 60(B) relief. |
| Whether the trial court’s and magistrate’s determinations on 60(B) were properly reviewed on appeal | The assignments of error should be sustained and judgment reversed. | The 60(B) rulings were within the trial court’s discretion and supported by the record. | Assignments of error overruled; judgment affirmed. |
Key Cases Cited
- Ford Motor Credit Co. v. Cunningham, 2004-Ohio-6226 (Montgomery App. 2004) (60(B) relief cannot substitute for an appeal)
- Risner v. Cline, 2004-Ohio-3786 (Champaign App. 2004) (Civ.R.60(B) motion cannot be based on change in decisional law)
- Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio St.3d 128 (1986) (Civ.R.60(B) motion may not be used to attack trial court’s decision)
- Tonti v. Tonti, 2004-Ohio-2529 (Franklin App. Nos. 03AP-494, 03AP-728, 2004) (60(B) relief not a substitute for direct appeal (example cited in analysis))
- Pelton v. Griffey, 70 Ohio St.3d 172 (Ohio 1994) (independent and conjunctive requirements for Civ.R.60(B) relief)