Nettle v. NettleNettle v. Nettle
Dated: September 29, 2010
BELFANCE, Presiding Judge.
{¶1} Defendant-Appellant David Nettle (“Husband“) appeals the judgment of the Summit County Court of Common Pleas, Domestic Relations Division, denying his motion to vacate a final divorce decree and temporary orders. For the reasons set forth below, we affirm.
I.
{¶2} On November 14, 2006, Plaintiff-Appellee Kimberly Nettle, n.k.a. Harbarger (“Wife“), filed a complaint for divorce. The parties had no children born of their marriage. Service was initially attempted by certified mail and addressed to Husband at an address in South Carolina. A notation in the docket indicated that certified mail service to that address failed. Wife‘s attorney thereafter moved for, and was granted, a continuance for the temporary orders hearing originally scheduled for December. The hearing was rescheduled for January 8, 2007.
{¶3} On December 11, 2006, Wife requested certified mail service of the summons, complaint, motion for temporary orders hearing, notice of the temporary orders hearing, and
{¶4} On January 16, 2007, the magistrate held a temporary orders hearing. It is unclear why the hearing took place on January 16 given that it had been scheduled for January 8, 2007. The magistrate subsequently issued a temporary order in which it noted that Husband‘s motion for a continuance was not granted. The magistrate also ordered temporary spousal support of $314.33 per month. Husband did not move to set aside the order.
{¶5} On February 27, 2007, the trial court held a hearing on the uncontested divorce. Husband was not in attendance and had not filed any other documents, besides his motion for a continuance, with the trial court. The trial court granted the divorce and awarded Wife $1500 per month in spousal support for sixty months. Husband did not file a direct appeal. Over two years later, Husband filed a motion to vacate the final divorce decree and the temporary orders pursuant to
{¶6} Husband has appealed, raising two assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED IN DENYING [HUSBAND‘S] MOTION TO VACATE THE TEMPORARY ORDERS AND THE FINAL DIVORCE DECREE AS SUCH ENTRIES WERE MADE IN CONTRAVENTION [OF] PROCEDURAL REQUIREMENTS[.]”
{¶7} Husband first asserts that jurisdictional defects rendered the decree and temporary orders void. Essentially, Husband suggests that there is a jurisdictional aspect to
{¶8}
“No action for divorce, annulment, or legal separation may be heard and decided until the expiration of forty-two days after the service of process or twenty-eight days after the last publication of notice of the complaint, and no action for divorce, annulment, or legal separation shall be heard and decided earlier than twenty-eight days after the service of a counterclaim, which under this rule may be designated a cross-complaint, unless the plaintiff files a written waiver of the twenty-eight day period.”
Husband argues that the trial court violated
{¶9} The Fifth District Court of Appeals has noted that:
“The aforementioned forty-two day rule traces its origins to Ohio‘s earlier statutory cooling-off or waiting period between filing and hearing in divorce cases. As this Court has recognized, the original legislative purpose of this waiting period was to discourage precipitous terminations of the bonds of matrimony and encourage continuation of the family. In 1970, the forty-two day rule was written into
Civ.R. 75(K) . In 1977, it became part ofCiv.R. 75(J) , although it has since returned to its earlier designation underCiv.R. 75(K) .” (Internal citations and quotations omitted.) Clark v. Clark, 5th Dist. No. 06 CA 8, 2006-Ohio-2902, at ¶7.
The Fifth District concluded that “the Ohio Supreme Court, via the Civil Rules, intended to preserve the concept of a waiting period as had been recited in Ohio legislation, and that such waiting period may not be waived.” Id. at ¶8.
{¶10} Assuming, without deciding, that the failure to comply with
{¶11} In light of the above, we do not find that the trial court erred when it concluded that it did not conduct the uncontested divorce hearing in contravention of
{¶12} Additionally, Husband asserts that the trial court erred in failing to vacate the temporary orders as he did not receive notice of the hearing which took place on January 16, 2007.
{¶13} Husband correctly points out there is no evidence in the record evidencing that the court notified the parties that the hearing that was supposed to take place on January 8, 2007 was continued until January 16, 2007. However, Husband does not assert that he did not receive the magistrate‘s order issued as a result of the January 16, 2007 hearing. Thus, Husband could have filed a motion within the ten days following the filing of the magistrate‘s order requesting that the order be set aside. See
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ABUSED ITS DISCRETION IN SUSTAINING THE DEFAULT FINAL DECREE OF DIVORCE[.]”
{¶14} In his second assignment of error, Husband argues that the trial court erred in failing to grant his motion to vacate pursuant to
{¶15} We review a trial court‘s decision to grant or deny a
“To prevail on his motion under
Civ.R. 60(B) , the movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated inCiv.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief areCiv.R. 60(B)(1) , (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken.” GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 150-151.
“If any of these three requirements is not met, the motion is properly overruled.” Masters at ¶13, citing Strack v. Pelton (1994), 70 Ohio St.3d 172, 174.
{¶16} In the instant case, the trial court did not provide any reasoning for denying Husband‘s motion pursuant to
IV.
{¶17} In light of the foregoing, we affirm the judgment of the Summit County Court of Common Pleas, Domestic Relations Division.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
CARR, J. CONCURS IN JUDGMENT ONLY, SAYING:
{¶18} Although I concur in the affirmance of the trial court‘s decision, I would do so on different grounds. Mr. Nettle raises issues that could have been raised in a direct appeal from the 2007 decree. Instead, he filed a motion to vacate over two years later.
{¶19} As this Court stated in Naples v. Naples, 9th Dist. No. 08CA009420, 2009-Ohio-1427, at ¶9:
”
Civ.R. 60(B) permits a party to obtain relief from judgment on several bases such as mistake, excusable neglect, newly discovered evidence, fraud, satisfaction of judgment, and other reasons justifying relief. ‘[T]he availability ofCiv.R. 60(B) relief is generally limited to issues that cannot properly be raised on appeal.’ Haas v. Bauer, 9th Dist. No. 02CA008198, 2004-Ohio-437, at ¶25, citing Yakubik v. Yakubik (Mar. 29, 2000), 9th Dist. No. 19587. See, also, Elyria Twp. Bd. of Trustees v. Kerstetter (1993), 91 Ohio App.3d 599, 602 (holding that appellant could not rely on arguments it could have asserted in a direct appeal because aCiv.R. 60(B) motion is not a substitute for direct appeal). ACiv.R. 60(B) motion is a proper vehicle for relief if the error alleged does not appear in the record. Harmon v. Harmon (May 30, 1984), 9th Dist. No. 11575 (holding that appellant‘s claim had to be raised throughCiv.R. 60(B) rather than a direct appeal because the finding that formed the basis of her claim for relief was not a part of the record). Yet, aCiv.R. 60(B) motion does not provide for the reconsideration of a judgment and cannot be employed to challenge the legal correctness of a trial court‘s decision. Thomas v. Fick (June 7, 2000), 9th Dist. No. 19595; Yakubik, supra.”
{¶20} I would affirm on this basis.
APPEARANCES:
CHRISTOPHER VANDEVERE, Attorney at Law, for Appellant.
MARTHA HOM, Attorney at Law, for Appellee.