610 N.E.2d 455 | Ohio Ct. App. | 1991
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *51 Defendant-appellant, Azzizollah Youssefi ("defendant"), appeals the decision of the Summit County Court of Common Pleas, Domestic Relations Division, denying his motion for relief from judgment and stay of execution of judgment. We affirm.
On October 23, 1989, defendant filed a motion for relief from judgment and stay of execution seeking to vacate a divorce decree entered on November 12, 1986. Defendant attached his affidavit to the Civ.R. 60(B) motion in which he swore, interalia, that he received no notice of the hearing date in the divorce action and that plaintiff-appellee, Ziaolmolouk Youssefi ("plaintiff"), had made fraudulent representations to the court concerning her financial condition, assets and residency. *52
On July 12, 1990, plaintiff filed a memorandum in opposition to the motion.
The case was set for an oral hearing. The trial court overruled the motion on December 17, 1990, and entered judgment on January 14, 1991.
Defendant filed a timely appeal.
Defendant claims that the trial court erred in failing to grant relief pursuant to Civ.R. 60(B)(4) and (5).
To prevail on a motion brought under Civ.R. 60(B) the movant must demonstrate that he is entitled to relief pursuant to one of the enumerated grounds of Civ.R. 60(B), that he has a meritorious defense or claim to present if relief is granted and that he brought his motion within the applicable time limit of Civ.R. 60(B). GTE Automatic Elec., Inc. v. ARC Indus., Inc.
(1976),
A person filing a motion for relief from judgment under Civ.R. 60(B) is not automatically entitled to such relief nor to a hearing on the motion. Adomeit v. Baltimore (1974),
Defendant claims that he is entitled to relief pursuant to Civ.R. 60(B)(4) on the grounds that the divorce decree should no longer have prospective application because it is based on the plaintiff's allegedly false representations.
Civ.R. 60(B)(4) provides that a judgment may be vacated when "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[.]"
Civ.R. 60(B)(4) offers relief from judgments which have been satisfied or which have become inequitable. Relief under Civ.R. 60(B)(4) must be warranted by events occurring subsequent to the entry of the judgment in question. Old Phoenix Natl. Bank v.Sandler (1984),
In the case sub judice, defendant's claims relate to events which allegedly occurred prior to the entry of judgment. Therefore, defendant has failed to demonstrate grounds for relief under Civ.R. 60(B)(4).
Defendant refers to the "catchall" basis for relief from judgment, "any other reason justifying relief from the judgment." Civ.R. 60(B)(5). This ground cannot serve as a substitute for the more specific grounds in Civ.R. 60(B).Caruso-Ciresi, Inc. v. Lohman (1983),
We also conclude that defendant has failed to demonstrate that he has a meritorious claim or defense to present if relief is granted. The evidentiary materials necessary for relief from judgment must present "operative facts" and not mere general allegations or conclusions. East Ohio Gas Co. v. Walker (1978),
While a motion for relief from judgment filed pursuant to Civ.R. 60(B)(4) and (5) is not governed by the one-year limitation period of Civ.R. 60(B)(1) through (3), the motion must still be brought within a reasonable time after entry of judgment. Civ.R. 60(B). The movant bears the burden of submitting factual material which demonstrates the timeliness of the motion. Adomeit, supra, at 103, 68 O.O.2d at 254,
An appellate court will not disturb an order denying relief from judgment, unless the trial court has abused its discretion by that ruling. Associated Estates Corp. v. Fellows (1983),
Judgment affirmed.
REECE and COOK, JJ., concur.