Noble v. NobleNoble v. Noble
BRYANT, J.
{¶1} Plaintiff-appellant, David S. Noble, appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, granting the
{¶3} On July 17, 2007, defendant filed a motion for relief from judgment pursuant to
{¶4} Although the trial court rejected defendant‘s argument that plaintiff misrepresented his financial situation by failing to disclose his parents’ plan to complete payment on the marital residence, the trial court found credible defendant‘s allegations that plaintiff imprоperly accessed defendant‘s e-mail. The court thus concluded defendant demonstrated she had a meritorious claim or defense and met the requirements of Civ.R.
{¶5} Plaintiff appeals, assigning three errors:
ASSIGNMENT OF ERROR NO. 1:
THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING APPELLEE A HEARING ON HER 60(B) MOTION AS APPELLEE‘S MOTION FAILED TO STATE SUFFICIENT OPERATIVE FACTS TO PERMIT A HEARING.
ASSIGNMENT OF ERROR NO. 2:
APPELLEE FAILED TO SUFFICIENTLY PLEAD FACTS TO SHOW THAT HER MOTION WAS FILED WITHIN A RESONABLE PERIOD OF TIME.
ASSIGNMENT OF ERROR NO. 3:
THE TRIAL COURT ERRED IN GRANTING APPELLEE‘S MOTION FOR RELIEF FROM JUDGMENT WHICH JUDGMENT INCORPORATED A PROPERTY SETTLEMENT AND SEPARATION AGREEMENT FREELY ENTERED INTO BY THE PARTIES AT THE TIME OF THEIR DIVORCE.
A) APPELLEE FAILS TO PROVIDE A MERITORIOUS DEFENSE OF CLAIM TO PRESENT IF RELIEF IS GRANTED.
B) APPELLEE HAS FAILED TO DEMONSTRATE THAT APPELLANT COMMITTED ANY MISCONDUCT IN OBTAINING THE JUDGMENT.
C) THE COURT ERRED IN FINDING APPELLEE‘S MOTION TIMELY.
{¶6} In order to prevail on a motion for relief from judgment under
{¶7} The decision to grant or deny a
{¶8} Plaintiff initially asserts defendant‘s
{¶9} Preliminarily, we note plaintiff‘s contention relies upon his parsing defendant‘s motion to claim that defendant‘s sole meritorious claim or defense was plaintiff‘s failure to disclose the mortgage payoff. While, under the heading of meritorious defense or claim, defendant raised only the disclosure issue, elsewhere in her motion defendant set forth the issue of plaintiff‘s misconduct. As a result, plaintiff‘s contention that his alleged failure to disclose an asset does not constitute a meritorious claim or defense is inapposite; the trial court granted defendant‘s motion premised on plaintiff‘s misconduct regarding defendant‘s computer, not his failure to disclose.
{¶10} “Generally, the question of whether to conduct an evidentiary hearing on a
{¶11} Allegations that the nonmoving party engaged in misconduct based on specifically described improper actions constitute sufficient operative facts so that a trial court must hold a hearing on the
II. Timeliness of Defendant‘s Motion
{¶12} Plaintiff next contends defendant failed to demonstrate her motion was filed within a reasonable time after the agreement was filed.
{¶13} At the hearing on the motion, defendant testified that at the end of July 2006, she became suspicious someone was accessing her e-mail. After consulting with her employer‘s in-house technical support, defendant hired the Geek Squad to examine her computer. A Geek Squad representative looked at the computer on August 8, 2006 and informed defendant that a “keystroke sniffer” program had been installed on it. The
{¶14} With that factual predicate, plaintiff argues that defendant concluded he was responsible as soon as defendant learned about the software installed on her computer. She nonetheless waited until July 17, 2007, 11 months later, to file her
{¶15} The trial court granted relief pursuant to
{¶16} Plaintiff further argues the trial court lacked jurisdiction over defendant‘s motion for relief from judgment, as the agreement did not include a provision granting the trial court continuing jurisdiction over spousal support. Plaintiff premises his argument on his belief that defendant, with hindsight, thought the agreement was inequitable and “is merely attempting to use her [Civ.R.]60(B) motion as a mechanism by which to provide the trial court with the jurisdiction to modify and reduce the terms of her spousal support obligation.” (Defendant‘s brief, at 15.)
{¶17} As plaintiff correctly notes,
{¶18}
IV. Burden of Proof
{¶19} Plaintiff next contends the trial court applied an inappropriate burden of proof in determining whether defendant is entitled to
{¶20} At the hearing on the matter, the trial judge indicated that “I don‘t have to find beyond a reasonable doubt; this isn‘t some criminal case. I just have to find if it‘s more likely than not.” (Tr. 81.) Even if the trial court‘s statement suggests it employed an arguably improper burden of proof, plaintiff failed to object to it at the hearing when an objection could have addressed the asserted error. Failure to timely advise a trial court of possible error, by objection or otherwise, results in a waiver of the issue for purposes of appeal. Goldfuss v. Davidson (1997), 79 Ohio St.3d 116, 121. The plain error rule fails to preserve the issue for plaintiff, as that doctrine is applied in civil cases only “in the
V. Evidentiary Issues
{¶21} Plaintiff also challenges the evidence the trial court relied upon to find that he engaged in misconduct during the settlement negotiations. Plaintiff contends the trial court violated
{¶22} The admission or exclusion of evidence is generally within the discretion of the trial court, so long as that discretion is exercised in line with the rules of procedure and evidence. Swearingen v. Swearingen, Franklin App. No. 06AP-698, 2007-Ohio-1241, citing Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271. An appellate court will not reverse a trial court‘s decision to admit or exclude evidence absent an abuse of discretion. Id., citing State ex rel. Sartini v. Yost, 96 Ohio St.3d 37, 2002-Ohio-3317, at ¶21.
{¶24} At issue here is an e-mail plaintiff sent to defendant on November 29, 2006 in which he agreed to pay for defendant‘s Geek Squad visit. Defendant testified during cross-examination that plaintiff admitted installing the keystroke sniffer on her computer. In plaintiff‘s subsequent testimony, plaintiff denied installing the software, but admitted he agreed to pay defendant‘s Geek Squad bill. Relying on Marszal v. Ameritrust (Oct. 27, 1983), Cuyahoga App. No. 46496, defendant argues that evidence which might otherwise be inadmissible under
{¶25} While plaintiff on appeаl challenges the trial court‘s ruling in admitting the Geek Squad e-mail, plaintiff did not object to the document‘s admission in the trial court. As a result, he waived all but plain error. Goldfuss, supra. Admission of the document not only does not rise to the level of plain error under the Goldfuss standard, but actually is
{¶26} Similarly, while defendant‘s testimony regarding the comments of the parties’ son may or may not be hearsay depending on the purpose for which the court admitted it, plaintiff only objected the first time the issuе arose. After the initial mention of the child‘s remarks, the issue was the subject of considerable testimony, some that plaintiff initiated. Even if the trial court erred in admitting the testimony over plaintiff‘s objection, the error was harmless in view of the subsequent testimony to which plaintiff did not object. Moreover, аs with plaintiff‘s e-mail concerning the offer to pay defendant‘s Geek Squad bill, any error does not rise to the level of plain error under the Goldfuss test.
{¶27} Accordingly, plaintiff‘s contentions regarding the evidentiary issues are not persuasive.
{¶28} Because none of the issues plaintiff raises has merit, we overrule his three assignments of error and affirm the judgment of the trial court.
Judgment affirmed.
FRENCH and KLATT, JJ., concur.
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