JOYCE L. SWANEY, Plaintiff-Appellee, v. CHALMER A. SWANEY, SR., Defendant-Appellant.
CASE NO. 2014-T-0084
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
June 15, 2015
[Cite as Swaney v. Swaney, 2015-Ohio-2456.]
TIMOTHY P. CANNON, P.J.
Civil Appeal from the Trumbull County Court of Common Pleas, Domestic Relations Division, Case No. 10 DR 424. Judgment: Affirmed.
Daniel G. Keating, Keating, Keating & Kuzman, 170 Monroe Street, N.W., Warren, OH 44483 (For Defendant-Appellant).
O P I N I O N
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Chalmer A. Swaney, Sr., appeals from the August 27, 2014 judgment entry of the Trumbull County Court of Common Pleas, Domestic Relations Division, denying his
{¶2} On July 22, 2013, the marriage of Chalmer A. Swaney, Sr. and Joyce L. Swaney was terminated by an Agreed Judgment Entry. This entry included a stipulation
(B) That the Plaintiff and Defendant shall share equally in the Defendant’s pension accrued during the course of the marriage through the Weathersfield Township Schools. The entire pension was acquired during the course of the marriage and the same shall be divided by way of Division of Property Order with the Plaintiff Wife receiving fifty percent (50%) of the accumulated benefit less One Hundred Fifty Dollars ($150.00) per month. In the event that the One Hundred Fifty Dollar ($150) deduction cannot be made by way of a Division of Property Order, then the Plaintiff Wife shall receive her fifty percent (50%) interest in the Defendant’s pension and shall be obligated to pay directly to the Defendant the sum of One Hundred Fifty Dollars ($150.00) per month as equalization of her social security benefits.
{¶3} After entering into this agreement, appellant became aware the State Teachers Retirement System would not accommodate the parties’ request to deduct $150 per month from appellant’s benefits. Appellant also became aware that appellee had a judgment against her in a separate matter in the amount of $4,001.60. Appellant filed a motion for relief from judgment, pursuant to
{¶4} Appellant filed a timely notice of appeal and asserts the following assignment of error for our review:
{¶5} “The trial court erred to the prejudice of appellant in failing to hold an evidentiary hearing on appellant’s motion for relief from judgment.”
{¶6} “A motion for relief from judgment under
{¶7}
On motion and upon such terms as are just, the court may relieve a party * * * from a final judgment, order or proceeding for the following reasons: (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 * * *; (4) the judgment has been satisfied, released or discharged * * *; or (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.
{¶8} As stated in
{¶9} Thus,
{¶10} The decision of whether to grant relief under
{¶11} We do not find error in the trial court’s determination that appellant’s
{¶12} Here, appellee has yet to violate her requirement of sending appellant $150 per month as mandated by the divorce decree. As evidenced in appellant’s motion for relief from judgment, appellant merely fears that appellee will not pay the
{¶13} Here, the parties agreed to the aforementioned provision in the Agreed Judgment Entry regarding the terms of the pension. It was not error for the trial court to refuse to allow a
{¶14} Appellant’s sole assignment of error is without merit.
{¶15} Based on the foregoing reasons, the judgment of the Trumbull County Court of Common Pleas, Domestic Relations Division, is hereby affirmed.
CYNTHIA WESTCOTT RICE, J.,
COLLEEN MARY O’TOOLE, J.,
concur.