Simon v. SimonSimon v. Simon
CALLAHAN, Judge.
{¶1} Appellant, Paul Simon, appeals an order that denied his motion for relief from judgment. This Court affirms.
I.
{¶2} In the years since Paul and Malinda Simon‘s divorce, they have engaged in continuous litigation. Although the docket reflects numerous filings, three particular events are relevant to this appeal. On September 24, 2014, the trial court granted Ms. Simon‘s motion for relief from judgment to the extent that a previously undisclosed pension plan had been omitted from the property distribution in the divorce decree. The trial court ordered Mr. Simon to pay Ms. Simon $23,793.18 within fourteen days. Mr. Simon attempted to appeal, but this Court dismissed his appeal as untimely filed. When Mr. Simon failed to abide by the September 2014 order, Ms. Simon moved the trial court to hold him in contempt. The trial court found Mr. Simon in contempt on February 13, 2015, entered judgment in favor of Ms. Simon in the amount
{¶3} Shortly thereafter, Ms. Simon moved the trial court to modify her spousal support, alleging that Mr. Simon was voluntarily underemployed. She filed a second motion approximately three months later, alleging a change in circumstances. Mr. Simon, in turn, moved to terminate his spousal support obligation. On March 20, 2017, the trial court adopted proposed findings of fact and conclusions of law filed by Ms. Simon and entered judgment on the uncollected balance of the pension assets with interest, awarded additional attorney fees, and increased Mr. Simon‘s spousal support obligation. Although the reason is unclear, the trial court entered a second judgment on these issues dated April 7, 2017. Mr. Simon filed objections to the findings of fact and conclusion of law, but he did not appeal either the March 20, 2017, or the April 7, 2017, order.
{¶4} Mr. Simon moved to vacate the orders issued on September 24, 2014, February 13, 2015, and April 7, 2017, under
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO GRANT APPELLANT‘S AMENDED MOTION TO VACATE JUDGMENT PURSUANT TO
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO RECOGNIZE THAT IT WAS IMPROPER FOR THE COURT TO ADOPT THE PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW SUBMITTED [BY] APPELLEE WITHOUT CONDUCTING A HEARING TO ADMIT ANY FACT INTO THE RECORD WHICH COULD BE PROPERLY INCORPORATED IN FINDINGS OF FACT AND CONCLUSIONS OF LAW IN RULING ON ITS DECISION TO DENY APPELLANT‘S AMENDED MOTION TO VACATE JUDGMENT PURSUANT TO
{¶5} Mr. Simon‘s first assignment of error argues that the trial court abused its discretion by failing to grant his motion for relief from the September 24, 2014, February 13, 2015, and April 7, 2017, orders. His third assignment of error makes the same argument, but elaborates on one of his grounds in support of his motion for relief from the April 7, 2017, order.
{¶6}
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; * * * or (5) any other reason justifying relief from the judgment.
A party challenging a judgment under
{¶7} A trial court does not abuse its discretion by denying a motion for relief from judgment that is based exclusively upon issues that could have been raised on direct appeal. Schutte v. Akron Pub. School Bd. of Edn., 9th Dist. Summit No. 23036, 2006-Ohio-4726, ¶ 7, citing Yoakum v. McIntyre, 7th Dist. Columbiana No. 03 CO 63, 2005-Ohio-7083, ¶ 31. “If we were to hold differently, judgments would never be final because a party could indirectly gain review of a judgment from which no timely appeal was taken by filing a * * * motion to vacate judgment.” State ex rel. Durkin v. Ungaro, 39 Ohio St.3d 191, 193 (1988).
{¶8} Mr. Simon argued that the trial court should grant him relief from judgment under
{¶9} A “mistake” for purposes of
{¶10} In his motion for relief from judgment, Mr. Simon also argued that he was entitled to common law relief because the trial court lacked jurisdiction to modify his spousal support retroactively in the April 7, 2017, order. Although he has framed his assignments of error in terms of
{¶11} Ohio courts have the inherent authority to vacate void judgments without reference to
{¶12} The first argument to which Mr. Simon alludes in his brief is that the trial court lacked jurisdiction to enter the April 7, 2017, order because it did not reserve jurisdiction to modify his spousal support obligation in the divorce decree. When a trial court modifies spousal support without a reservation of jurisdiction under
{¶13} The second argument that Mr. Simon references is that the trial court lacked jurisdiction to make the spousal support modification retroactive to a period of time in which an appeal to this Court was pending. A trial court does not have jurisdiction to act while an appeal is pending “except to take action in aid of the appeal.” In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, ¶ 9, citing State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97 (1978). Mr. Simon does not maintain that there was an appeal pending in this Court on April 7, 2017, when the trial court entered the spousal support order, but that an appeal was pending approximately five years earlier on the date to which the trial court made the modification effective. Any error in determining the date to which the modification was retroactive would also render the order voidable, not void. Because each of the grounds Mr. Simon has referenced in support of his common law motion would render the April 7, 2017, order voidable, the trial court did not err by denying his motion on that basis.
{¶14} Mr. Simon‘s first and third assignments of error are overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO CONDUCT AN EVIDENTIARY HEARING ON APPELLANT‘S MOTION TO VACATE PURSUANT TO
{¶15} In his second assignment of error, Mr. Simon has argued that the trial court erred by denying his motion for relief from judgment without conducting a hearing. This Court disagrees.
{¶16} “A person filing a motion for relief from judgment under Civil Rule 60(B) is not automatically entitled * * * to a hearing on the motion.” Adomeit v. Baltimore, 39 Ohio App.2d 97, 103 (8th Dist.1974). A hearing is only required when a moving party alleges operative facts that would warrant relief. Coulson v. Coulson, 5 Ohio St.3d 12, 16 (1983), citing Adomeit at 103. See also Primo Bedding Co., Inc. v. R. Acres, Inc., 9th Dist. Summit No. 24535, 2009-Ohio-3971, ¶ 10.
{¶17} As noted in this Court‘s discussion of Mr. Simon‘s first and third assignments of error, the basis for each of his arguments was that he was entitled to relief from the trial court‘s judgments because of mistakes on the part of the trial court. He has, therefore, not alleged any operative facts that would warrant relief under
III.
{¶18} Mr. Simon‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas, Domestic Relations Division, is affirmed.
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 App.R. 27.
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
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
CARR, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
MICHAEL J. CONNICK, Attorney at Law, for Appellant.
JAMES L. LANE, Attorney at Law, for Appellee.