Rotroff v. Rotroff, F-06-019 (5-18-2007)Rotroff v. Rotroff, F-06-019 (5-18-2007)
{¶ 2} The relevant facts are as follows. On February 6, 1997, appellee, Kelly Rotroff (n/k/a Fox), filed a complaint for divorce. The parties married in 1982, and have five children. *2
{¶ 3} On September 9, 1997, the judgment entry of divorce was journalized. In the judgment entry, the court stated that "the proposed agreement between the parties is fair and equitable and that the parties have knowingly and intelligently entered into said agreement." The court then divided the parties' assets and liabilities. The asset at issue in this case, appellant's military pension, was divided as follows: "12. That Plaintiff shall be entitled to receive one half (1/2) of the military pension of Defendant valued at four hundred fifty dollars ($450.00) per month for the rest of her life."
{¶ 4} On November 12, 2004, appellant filed a motion for relief from judgment pursuant to
{¶ 5} On August 31, 2005, appellant filed a supplemental motion for
{¶ 6} On July 19, 2006, the trial court denied appellant's motion. With regard to the dispute over appellant's pension, the trial court found that the motion was untimely. The court further noted that the fact that appellant had been receiving his portion of the *3 pension should have served as "notice" of the "mistake" claimed by appellant. This appeal followed.
{¶ 7} Appellant, pro se, essentially argues that the trial court erroneously denied his motion for relief from judgment. It is well-settled that "[a] motion for relief from judgment under
{¶ 8}
{¶ 9} "(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 new trial under Rule 59(B); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (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 (5) any other reason justifying relief from the judgment."
{¶ 10} In order to obtain relief from judgment pursuant to
{¶ 11} "(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
{¶ 12} These requirements must be shown by "operative facts" presented in evidentiary material accompanying the request for relief. East OhioGas Co. v. Walker (1978),
{¶ 13} In the present case, appellant moved for relief from judgment under
{¶ 14} In the trial court, appellant argued that his
{¶ 15} Upon review of the record and the arguments of the parties we find that appellant failed to meet his burden of establishing the timeliness of his motion. Appellant admitted that he became aware of a problem in 1999, when the payments did not cease upon appellee's remarriage. Further, appellee was being paid 50 percent of the pension, which appellant claimed was being distributed under an "incorrect formula," beginning in 1997. Finally, the pension division was originally agreed to by the parties, both represented by counsel, and was incorporated into the September 9, 1997 Judgment Entry of Divorce. Had appellant disagreed with the clear language in the judgment entry, he could have filed a
{¶ 16} On consideration whereof, we find that substantial justice was done the party complaining and the judgment of the Fulton County Court of Common Pleas, Domestic Relations Division, is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
*6JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J. JUDGE
Mark L. Pietrykowski, P.J. JUDGE
Thomas J. Osowik, J. JUDGE
*1CONCUR.