[Cite as Melinich v. Melinich, 195 Ohio App.3d 451, 2011-Ohio-5068.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
MELINICH, :
Appellant, : C.A. CASE NO. 24399
v. : T.C. NO. 05DR1584
MELINICH, : (Civil appeal from Common
Pleas Court, Domestic Relations)
Appellee. :
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OPINION
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Rendered on the 30 day of September, 2011.
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Mary K. C. Soter, for appellant.
Kathy L. Ellison, for appellee.
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DONOVAN, Judge.
{¶ 1} Plaintiff-appellant, Alphonse H. Melinich, appeals a decision of the
Montgomery County Court of Common Pleas, Domestic Relations Division,
adopting the decision of the magistrate granting the Civ.R. 60(B) motion for relief
from judgment of defendant-appellee, Wendy S. Melinich. Specifically, Wendy
sought relief from the trial court’s decision of May 6, 2009, which adopted a
magistrate’s decision overruling her motion to find Alphonse in contempt for failure
to make payments toward his portion of a joint student loan. After a hearing held on
December 4, 2009, the magistrate granted Wendy’s motion for relief from judgment
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in a written decision issued on December 23, 2009. The trial court subsequently
adopted the decision of the magistrate on November 17, 2010. Alphonse filed a
timely notice of appeal with this court on December 17, 2010.
I
{¶ 2} Alphonse and Wendy were married on December 10, 1993, in
Dayton, Ohio. On December 22, 2005, Alphonse filed a complaint for divorce.
Both parties were represented by counsel in the initial stages of the divorce
proceedings. A judgment entry granting the parties’ final decree of divorce was
filed on July 12, 2006. At issue in the instant appeal is the following section of the
parties’ final decree, which states:
{¶ 3} “(11) Debts
{¶ 4} “* * *
{¶ 5} “The parties acknowledge that they have a joint, consolidated student
loan for both the Plaintiff and the Defendant, the balance of which is $30,362.47.
They further acknowledge that this loan is in forbearance until January, 2007.
{¶ 6} “The parties agree to cooperate to petition to divide the Sallie Mae
student loan into two separate accounts, and to each pay his or her account. If
Sallie Mae refuses to divide the student loan into two separate accounts, then each
of the parties shall pay one-half of the total amount due on the student loan each
month until it is paid in full.”
{¶ 7} Wendy filed a pro se motion on January 2, 2008, requesting that
Alphonse be held in contempt for failure to pay the joint student loan. A hearing
was held on the contempt matter on February 28, 2008, and April 21, 2008. On
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May 12, 2008, the magistrate issued a decision overruling Wendy’s motion to hold
Alphonse in contempt for failure to pay the joint student loan. Wendy filed
objections to the magistrate’s decision. The trial court adopted the magistrate’s
findings in a decision issued on May 6, 2009.
{¶ 8} On August 7, 2009, Wendy filed a motion for relief from judgment
pursuant to Civ.R. 60(B)(1) and (2) regarding the trial court’s adoption of the
magistrate’s decision. In her motion, Wendy argued she was a “victim of ‘surprise’
when [Alphonse] presented the alleged proof that the loan was wiped clean.”
Wendy asserted that she did not know about, nor could she have obtained through
discovery, Alphonse’s exhibit that he proffered in order to establish that he had paid
off his portion of the joint student loan, because the exhibit was in no way related to
the joint loan. Thus, she argued that the exhibit constituted “newly discovered
evidence” that she could not have acquired prior to the contempt hearing.
{¶ 9} In a decision issued on December 23, 2009, the magistrate granted
Wendy’s Civ.R. 60(B) motion for relief from judgment. Specifically, the magistrate
found that Alphonse was in contempt for failure to pay his portion of the joint
student loan and sentenced him to 30 days in jail. The magistrate, however,
suspended the jail sentence on the condition that Alphonse pay his monthly share
of the joint loan and also pay off the accumulated arrearage of $2,993.79. The trial
court subsequently adopted the magistrate’s decision granting the motion for relief
from judgment on November 17, 2010.
{¶ 10} It is from this judgment that Alphonse now appeals.
II
{¶ 11} Because they are interrelated, all of Alphonse’s assignments of error
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will be discussed together as follows:
{¶ 12} “The court’s granting of the Ohio R. of Civ.Proc. 60(B) motion was
unreasonable, arbitrary, and unconscionable. Defendant should have filed an
appeal from the judge’s decision.”
{¶ 13} “A hearing should have been held on whether or not the defendant’s
60(B) motion was or was not going to be granted, prior to the holding of the
evidentiary hearing.”
{¶ 14} “The magistrate erred in ruling that defendant had a right to have her
60(B) motion sustained due to surprise.”
{¶ 15} “The magistrate erred in considering evidence which was not
contained in the transcript of the first hearing and which was not brought out at the
December, 2009 hearing.”
{¶ 16} In his first assignment, Alphonse contends that Wendy’s Civ.R. 60(B)
motion for relief from judgment was not the proper method by which to dispute the
trial court’s decision issued on May 6, 2009. Rather, Alphonse argues that Wendy
should have filed a direct appeal of the trial court’s decision. Alphonse asserts that
a hearing should have been held prior to the Civ.R. 60(B) evidentiary hearing in
order to determine whether Wendy’s motion was going to be granted. Alphonse
further argues that the magistrate erred by sustaining Wendy’s Civ.R. 60(B) motion
on the basis of surprise. Lastly, Alphonse asserts that the magistrate erred by
considering evidence at the Civ.R. 60(B) evidentiary hearing that was not adduced
during the hearing on December 4, 2009.
{¶ 17} Civ.R. 60(B) provides: "On motion and upon such terms as are just,
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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; (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."
{¶ 18} “To prevail on a motion under 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 proceeding was entered or taken.” GTE Automatic
Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, paragraph two of the
syllabus; Covert Options, Inc. v. R.L. Young & Assocs., Inc., Montgomery App. No.
20011, 2004-Ohio-67, ¶ 7. All three elements must be established, and "the test is
not fulfilled if any one of the requirements is not met." Strack v. Pelton (1994), 70
Ohio St.3d 172, 174; Fifth Third Bank of W. Ohio v. Shepard Grain Co., Inc., Miami
App. No. 2003 CA 40, 2004-Ohio-1816, ¶ 10.
{¶ 19} The requirements outlined above are “independent and in the
conjunctive; thus the test is not fulfilled if any one of the requirements is not met.”
Pelton, 70 Ohio St.3d at 174. Motions for relief from judgment under Civ.R. 60(B)
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are addressed to a trial court’s sound discretion, and the court’s ruling “will not be
disturbed on appeal absent a showing of abuse of discretion.” Griffey v. Rajan
(1987), 33 Ohio St.3d 75, 77.
{¶ 20} It is well established that a motion under Civ.R. 60(B) may not be
used as a substitute for a direct appeal. Risner v. Cline, Champaign App. No.
2003-CA-24, 2004-Ohio-3786, citing Doe v. Trumbull Cty. Children Servs. Bd.
(1986), 28 Ohio St.3d 128 (Civ.R. 60(B) motion may not be based on a change in
the decisional law after final judgment has been rendered).
{¶ 21} As we noted in Ford Motor Credit Co. v. Cunningham, Montgomery
App. No. 20341, 2004-Ohio-6226:
{¶ 22} “ ‘[A] motion for relief from judgment cannot be predicated upon the
argument that the trial court made a mistake in rendering its decision. Chester
Twp. v. Fraternal Order of Police (1995), 102 Ohio App.3d 404, 408. The type of
mistake contemplated by Civ.R. 60(B)(1) is a mistake by a party or his legal
representative, not a mistake by the trial court in its legal analysis. Antonopoulos
v. Eisner (1972), 30 Ohio App.2d 187; Carrabine v. Brown (Aug. 13, 1993), Geauga
App. No. 92-G-1736. In order to contest the trial court's judgment dismissing his
motion, appellant was required to directly appeal that judgment. Civ.R. 60(B) relief
cannot be employed as a substitute for an appeal. Doe, * * * 28 Ohio St.3d [at]
131, 502 N.E.2d 605.’ Tonti v. Tonti, Franklin App. Nos. 03AP-494, 03AP-728,
2004-Ohio-2529, ¶ 130.”
{¶ 23} While Wendy claims surprise, rather than mistake or inadvertence, as
the basis for her motion for relief from judgment, it is apparent from the record that
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she has not attempted to circumvent the appellate process through her use of
Civ.R. 60(B)(1) and (3). During the hearing on April 21, 2008, Alphonse presented
the magistrate with Exhibit 1-A, a document that he claimed established that he
had paid his portion of the joint student loan in both parties’ names. This was a
misrepresentation by an adverse party regarding the status of a disputed loan.
The account number on the loan document provided by Alphonse was different
from the account number on the loan document in Wendy’s possession, which she
testified was the actual record of the joint student loan. Wendy testified that she
had never seen the document proffered by Alphonse and was unaware that it
existed. Alphonse testified that based on the documentation he provided, his
portion of the loan was paid and he was no longer responsible for any payments
with respect to the joint student loan. Wendy asked the magistrate for a
continuance in order to investigate the document proffered by Alphonse, but the
court denied her request. When presented with a copy of the joint student-loan
document that listed approximately $33,000.00 still owing on the loan, Alphonse
testified as follows:
{¶ 24} “A: That can be a computer error. I have no idea. This is the first
time I’m being presented with this, so it’s real hard for me to testify over information
that is just being thrown in my lap that I have no previous knowledge of.”
{¶ 25} At the evidentiary hearing on December 4, 2009, regarding her motion
for relief from judgment, Wendy provided the following testimony regarding the
document proffered by Alphonse:
{¶ 26} “Defense Counsel: Okay. Am I correct that you chose to represent
yourself?
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{¶ 27} “Wendy: Yes.
{¶ 28} “Q: And am I correct that Magistrate Hall told you in the very
beginning of the hearing that you had a right to continuance?
{¶ 29} “A: Yes.
{¶ 30} “Q: And am I correct that you said you did not want a continuance?
{¶ 31} “A: That’s correct, yes.
{¶ 32} “Q: All right. Am I correct that after you didn’t like the way the hearing
was going, you decided you wanted a continuance?
{¶ 33} “A: Well, it was the fact that I was thrown a document at me that I
wasn’t given in advance that I need to investigate and find out why the [loan]
numbers were different and why it said something different from my – our joint
account number. Why it had a different account number and stuff.
{¶ 34} “Q: Did you do any discovery demand upon Alphonse Melinich prior to
that hearing [on April 21, 2008]?
{¶ 35} “A: No.
{¶ 36} “Q: Did you do a subpoena on Alphonse to bring any documents with
him to the hearing?
{¶ 37} “A: I don’t think so, no.”
{¶ 38} Alphonse argues that Wendy could have conducted discovery and
been made aware of Exhibit 1-A prior to the hearing. Alphonse also points out that
the fact that she chose to represent herself does not abrogate her duty to abide by
the same rules that attorneys must follow regarding discovery. Thus, Alphonse
asserts that Wendy has waived any argument she may have had with respect to
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Exhibit 1-A because she failed to appeal the trial court’s decision overruling her
objection to the magistrate’s decision regarding the joint student loan.
{¶ 39} Upon review, we find that the exhibit proffered by Alphonse purporting
to establish that he had paid off his portion of the student loan prior to the April 21,
2008 hearing bore no relevance to the proceedings. The loan paid off by Alphonse
was not the same loan that the parties were jointly ordered to pay in the final
divorce decree. As noted by the trial court, the account number of Exhibit 1-A
(9699388690-1) is not the same as the joint student-loan number (9605078250-9)
at issue in the instant case. By his own admission, Alphonse had not made a
single payment on the joint student loan since April 2007. Had Wendy conducted
discovery, it is unlikely that she would have requested or received Exhibit 1-A
because it was totally unrelated to the joint student loan for which both parties were
responsible, and she had no idea that such a document even existed.
Accordingly, the trial court did not abuse its discretion when it adopted the
magistrate’s decision finding that Wendy established that she had been surprised
by newly discovered evidence that she could not have otherwise discovered with
due diligence. Under these circumstances, a motion for relief from judgment is
permissible, and Alphonse is clearly responsible for his portion of the joint student
loan.
{¶ 40} In his second assignment, Alphonse contends that a hearing should
have been held in order to determine whether Wendy’s Civ.R. 60(B) motion was to
be granted before an evidentiary hearing was held on the actual merits of the
motion for relief from judgment. Simply put, we are not persuaded by Alphonse’s
argument. As directed by the trial court, the magistrate held a hearing on
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December 4, 2009, in order to decide the merits of Wendy’s Civ.R. 60(B) motion for
relief from judgment. The magistrate did not err by allowing evidence regarding
the merits of Wendy’s motion to be presented during the hearing. Lastly, we note
that Alphonse’s fourth assignment of error is merely a restatement of arguments
advanced in his first, second, and third assignments and is, likewise, without merit.
III
{¶ 41} All of Alphonse’s assignments of error having been overruled, the
judgment of the trial court adopting the decision of the magistrate is affirmed.
Judgment affirmed.
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GRADY, P.J., and W AITE, J., concur.
CHERYL L. W AITE, J., of the Seventh District Court of Appeals, sitting by assignment.
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