Gaul v. GaulGaul v. Gaul
Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2006 DR 425.
Judgment: Affirmed.
James R. Skirbunt, and Sharon A. Skirbunt, Skirbunt & Skirbunt Co., L.P.A., 3150 One Cleveland Center, 1375 East Ninth Street, Cleveland, OH 44114 (For Plaintiff-Appellee).
Dennis J. Ibold, Peterson & Ibold, Inc., 401 South Street, Building 1-A, Chardon, OH 44024-1495 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} This appeal is from a final judgment of the Ashtabula County Court of Common Pleas. Appellant, Diana J. Gaul, challenges the merits of the trial court‘s decision to overrule her motion for relief from a specific order set forth in underlying divorce decree. Essentially, she contends that the assertions in her motion were sufficient to justify an evidentiary hearing prior to the final disposition of the matter.
{¶2} The parties to this action were married for approximately 30 years and had
{¶3} During the evidentiary intake, the trial court heard testimony regarding the parties’ potential tax liability for the 2006 tax year if they filed a joint return. Despite the fact that a court order had been issued requiring the parties to file jointly, appellant had failed to comply. As a result, it was necessary for the parties to file an amended return for 2006. The trial testimony on the potential liability was given before the basic process of amending the return could be completed.
{¶4} The final divorce decree was rendered in January 2009. As to appellant‘s tax liability for 2006, the decree had two provisions, the first of which was stated at page 7:
{¶5} “From [appellant‘s] one-half (1/2) of the net proceeds from the sale of the marital residence, she shall reimburse [appellee] for one-half (1/2) of the 2006 Federal Tax Liability, $9,688, plus his $9,000 in equity in the Black Sea Road property.”
{¶6} The second relevant provision on the 2006 taxes was set forth at page 9 of the divorce decree:
{¶7} “[Appellant] violated this Court‘s Order that the parties should file a Joint Income Tax return for the tax year of 2006. [Appellee] shall be responsible for the 2006 taxes and [appellant] shall reimburse [appellee] the sum of $9,688, representing one-half (1/2) of the 2006 tax liability when the marital residence is sold.”
{¶9} In July 2011, approximately 30 months after the issuance of the divorce decree, appellant moved the trial court for relief from judgment under
{¶10} In support of her 60(B) motion, appellant submitted a memorandum which delineated her legal argument. However, she did not attach any evidentiary materials to her motion or memorandum.
{¶11} In his response to appellant‘s motion, appellee raised four arguments for the trial court‘s consideration. As his primary contention, he stated that appellant was not entitled to relief from the final decree because her motion was not submitted within a reasonable time. As to this point, appellee asserted that he and appellant had actually filed their amended 2006 joint tax return in late 2007. Based upon this, he argued that appellant had been aware of the extent of her actual liability for over three years, and that she technically could have raised the point before the trial court prior to the release of the divorce decree in January 2009. In support of these factual assertions, appellee
{¶12} Four days after the filing of appellee‘s response, the trial court rendered a separate judgment overruling appellant‘s 60(B) motion without a hearing. As the basis for its decision, the trial court merely indicated that it found the arguments in appellee‘s response to be well taken.
{¶13} On appeal from the foregoing judgment, appellant has raised the following assignment of error for our consideration:
{¶14} “The trial court abused its discretion in denying [appellant‘s] motion for relief from judgment without a hearing and without providing [appellant] with grounds for dismissal.”
{¶15} Since the trial court did not state any exact reason for overruling the
{¶16}
{¶17} “On motion and upon such terms as are just, the 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
{¶18} In regard to the general purpose of
{¶19} “In order to prevail on a
{¶20} In the present matter, appellant never referred to one of the five possible grounds as the basis for her motion. Given that she sought to submit new evidence as to a factual issue which the trial court had decided as part of the final divorce decree, it might appear, at first blush, that she was attempting to proceed under
{¶21} In reviewing the “new evidence” grounds for relief under
{¶22} Accordingly, if the basis for appellant‘s 60(B) motion was legally sufficient to state a viable reason for obtaining relief, she could only go forward under
{¶23} In conjunction with her basic argument on the timeliness issue, appellant maintains that, in submitting her
{¶24} “With respect to the first prong of the [
{¶25} As was previously noted, a review of the trial record readily indicates that appellant did not attach any materials of evidential quality, such as an affidavit, to either
{¶26} Alternatively, this court would emphasize that, even if there had been no duty to submit evidentiary materials with the 60(B) motion, our review of the assertions in appellant‘s motion shows that they were not sufficient to entitle her to an evidentiary hearing on the matter. Regarding issues for which evidentiary materials are not viewed as necessary, this court has still noted that an immediate denial of the motion for relief is appropriate if it only contains bare allegations. LaRosa, 2002 Ohio App. LEXIS 1199, at *9. Rather, the motion must allege sufficient operative facts to demonstrate that the moving party will be able to establish the disputed point. Brewster, 2004-Ohio-1145, at ¶9.
{¶27} In this case, the trial record shows that the memorandum accompanying appellant‘s
{¶28} It is undisputed that appellant filed her
{¶29} As part of her argument on the “timeliness” issue, appellant proposes that the determination of whether she filed the motion timely should not be predicated upon when the amended tax return was executed, or when it was filed. According to her, the time for submitting the motion should not have started to run until she became aware that her tax liability could not be offset against her share of the equity in the residence. As to the merits of this proposition, this court would emphasize that, in moving for relief under
{¶30} Finally, it must also be noted that, in responding to the
{¶31} In reviewing the denial of a 60(B) motion on appeal, an appellate court has an obligation to uphold the determination unless the trial court engaged in an abuse of its discretion. Mortgage Elec. Registration Sys., 2008-Ohio-4051, at ¶10. Pursuant to the foregoing analysis, this court concludes that the trial record before us does not show that an abuse of discretion took place. Specifically, the trial court could have justifiably held that appellant‘s motion did not reference sufficient operative facts to make any type of showing that she had brought the motion within a reasonable time. Hence, because appellant would not be able to satisfy all three prongs of the standard for
{¶32} As a separate argument under her sole assignment, appellant argues that the judgment on her 60(B) motion must be reversed because the trial court erred in not expressly stating the underlying reasons for its decision. In addressing this exact point, the Eighth Appellate District has indicated that, while it may be “good practice” for a trial court to provide findings of fact and conclusions of law in its judgment, the Ohio Rules of Civil Procedure do not specifically refer to such a requirement. Adomeit v. Baltimore, 39 Ohio App.2d 97, 104 (8th Dist.1974). In the instant case, since an evidentiary hearing was never conducted, no findings of fact were necessary. Furthermore, because the
{¶33} As appellant has failed to establish any error in the trial court‘s decision denying her
DIANE V. GRENDELL, J.,
MARY JANE TRAPP, J.,
concur.