Lead Opinion
{¶ 2} Appellant and appellee were married on August 21, 1986 in Maryland. No children were born of the marriage. On May 27, 2004, appellant filed a complaint for divorce. Attached therewith was a separation agreement signed by both parties on May 7, 2004. Appellee did not file an answer. On June 4, 2004, the court issued a notice of hearing for an uncontested divorce. Said hearing went forward on July 14, 2004. Appellant appeared with counsel, while appellee appeared pro se. The trial court issued a decree of divorce on the same day.
{¶ 3} On September 28, 2004, appellee filed a motion for relief from judgment, pursuant to Civ.R. 60(B)(1), (2), (3), and (5). Appellee included an affidavit in support, which consisted solely of the following language:
{¶ 4} "Now comes the Defendant, being first duly sworn, deposes and states that the divorce decree should be overturned due to the fact that Defendant was taken advantage of and due to the fact that the divorce decree is not fair and equitable and other reasons as will be set forth at the hearing of this matter."
{¶ 5} A "non-oral hearing" on appellee's motion was scheduled by the court for October 15, 2004 at 9:00 AM. On the same day, the trial court issued a judgment entry granting the 60(B) motion, and declaring the separation agreement null and void. Appellant thereafter retained counsel and filed a notice of appeal on November 12, 2004. Appellant further obtained a stay of proceedings in the trial court on November 23, 2004.
{¶ 6} The following sole Assignment of Error is now before this Court:
{¶ 7} "I. THE TRIAL COURT ERRED AS A MATTER OF LAW BASED UPON THE FACTS PRESENTED IN GRANTING THE MOTION PURSUANT TO OHIO CIVIL RULE 60(B) AND VACATING NOT ONLY THE DIVORCE, BUT THE ENTIRE SEPARATION AGREEMENT OF THE PARTIES AND SAME WAS AN ABUSE OF DISCRETION BY THE TRIAL COURT.
I.
{¶ 8} In his sole Assignment of Error, appellant contends the trial court erred and abused its discretion by granting appellee's Civ.R. 60(B) motion and vacating the parties' divorce and separation agreement. We disagree in part.
{¶ 9} Civ.R. 60(B) reads as follows: "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:
{¶ 10} "(1) mistake, inadvertence, surprise or excusable neglect;
{¶ 11} "(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(B);
{¶ 12} "(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;
{¶ 13} "(4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
{¶ 14} "(5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken. * * *."
{¶ 15} In order to prevail on a motion brought pursuant to 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 in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceedings was entered or taken."Argo Plastic Products Co. v. Cleveland (1984),
{¶ 16} Civ.R. 60(B) represents an attempt to "strike a proper balance between the conflicting principles that litigation must be brought to an end and justice should be done." Colley v.Bazell (1980),
{¶ 17} Appellant does not challenge the third prong of Argo
in the case sub judice; i.e., he does not seek to argue that appellee's 60(B) motion was untimely. We thus must analyze whether the trial court abused its discretion in granting relief from judgment based on appellee's aforecited four-line affidavit. We note Civ.R. 60(B) only requires a party to allege a meritorious defense, it does not have to prove that it will prevail on that defense. See Rose Chevrolet, Inc. v. Adams
(1988),
{¶ 18} We do conclude, however, that the trial court overstepped its bounds by additionally rendering the separation agreement null and void, without at least conducting a full hearing. It is well-established that separation agreements are subject to the same rules of construction as other types of contracts. Brown v. Brown (1993),
{¶ 19} Appellant's sole Assignment of Error is therefore overruled in part and sustained in part.
{¶ 20} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Domestic Relations Division, Fairfield County, Ohio, is hereby affirmed in part, reversed in part, and remanded for an evidentiary hearing on the validity of the parties' May 7, 2004 separation agreement.
Farmer, P.J., concurs.
Edwards, J., dissents.
Dissenting Opinion
{¶ 21} I agree with the majority that this case must be remanded to the trial court for an evidentiary hearing. But, I respectfully disagree with the majority's decision to treat the decree of divorce and the separation agreement as separate entities. The majority affirms the trial court's decision to vacate the divorce decree but remands the issue of the validity of the separation agreement for an evidentiary hearing. I would find that the separation agreement has been incorporated into the divorce decree and the two entities have become one. That one entity is the divorce decree. Therefore, I would remand the issue of whether the decree should be vacated for an evidentiary hearing.
{¶ 22} The syllabus in Wolfe v. Wolfe (1976),
Costs to be split evenly between appellant and appellee.