Rodeno v. Mezenski

[Cite as Rodeno v. Mezenski, 2022-Ohio-1176.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

PETER RODENO, EXECUTOR OF THE :
ESTATE OF DANIEL A. RODENO,
No. 111030
Plaintiff-Appellee, :

v. :

ALAN MEZENSKI, GUARDIAN OF :
KAREN L. RODENO,

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 7, 2022

Civil Appeal from the Cuyahoga County Common Pleas Court
Domestic Relations Division
Case No. DR-18-372371

Appearances:

Eloff and Wilson, L.L.P., Kathryn Gonser Eloff and James
Matthew Wilson; Milano Attorneys & Counselors at Law,
Jay Milano and Kate Pruchnicki, for appellee.

Mark A. Ziccarelli, for appellant.

EILEEN A. GALLAGHER, J.:

In this accelerated appeal, appellant Alan Mezenski, guardian of

Karen L. Rodeno, appeals from the trial court’s order denying his motion for relief
from judgment pursuant to Civ.R. 60(B)(5). Mezenski sought to vacate the trial

court’s final judgment entry of divorce, which granted a divorce between Daniel

Rodeno (“Daniel”) and Mezenski’s sister, Karen Rodeno (“Karen”), divided assets

and liabilities and ordered the payment of spousal support to Karen. Mezenski

claimed that Karen was entitled to relief from judgment under Civ.R. 60(B)(5)

because (1) Karen was incompetent at the time of the divorce decree and (2) it was

“no longer equitable to enforce” the divorce decree. Mezenski contends that the trial

court abused its discretion in failing to appoint a guardian ad litem to protect

Karen’s interests during the divorce proceedings and in denying his motion without

a hearing because the motion set forth sufficient operative facts entitling Karen to

relief from judgment under Civ.R. 60(B)(5).

For the reasons that follow, we affirm.

Procedural and Factual Background

Daniel and Karen were married on October 8, 1993. They had no

children together. On June 15, 2018, Daniel filed a complaint for divorce, alleging

that the couple was incompatible. Karen was personally served with a copy of the

complaint, but she did not file an answer and she did not appear for the divorce

hearing held on August 24, 2018. Following the hearing, the trial court issued a

divorce decree (the “divorce decree”), granting the parties a divorce based on

incompatibility, dividing the parties’ “separate property, marital property and debts

acquired during the marriage” and ordering Daniel to pay Karen $3,000 a month in

spousal support for 48 months.
 Daniel was awarded the parties’ interest in two residential properties

located in Westlake, Ohio and Berea, Ohio and was assigned the debt associated with

those properties, $321,888 and $93,446.32, respectively. He was also awarded

savings and checking accounts valued at $12,000, an IRA valued at $567,410.87, an

investment account valued at $93,817.87 and a 2011 Mercedes E350 valued at

$18,000. Karen was awarded a checking account valued at $125, personal jewelry

valued at $2,000, an IRA valued at $80,962.73 and an investment account valued

at $2,200. Karen also retained a monthly social security benefit of $1,569.10 and a

monthly pension benefit of $419.96.

The trial court found that the division of property, “though not equal,”

was “equitable” because the marriage was “a second marriage for both” parties and

“a significant portion” of Daniel’s IRA was “premarital.” The trial court’s August 24,

2018 journal entry, at the conclusion of the section addressing spousal support,

states that “[t]he [c]ourt shall not retain jurisdiction to modify this order.”

Daniel died on May 28, 2020. On October 1, 2020, the probate court

appointed Mezenski guardian of Karen’s person and estate in In the Matter of the

Guardianship of Karen Rodeno, Cuyahoga P.C. No. 2020GRD254156 (the “probate

case”).

On May 25, 2021 — more than two-and-one-half years after the

parties’ divorce — Mezenski filed a “motion for relief from judgment of August 24,

2018 and request for full evidentiary hearing.” Mezenski requested that the trial

court vacate the divorce decree and “grant [Karen] relief from the division of assets
and liabilities and the non-payment [sic] of spousal support.” Mezenski claimed

that Karen’s incompetence, combined with an inequitable property division, the

payment of inadequate spousal support, Karen’s failure to enter an appearance in

the divorce proceeding, Daniel’s “knowledge of her incompetence, yet proceeding to

a divorce” and the trial court’s failure to appoint a guardian ad litem to protect her

interests pursuant to Civ.R. 17(B) constituted “any other reason justifying relief from

judgment” under Civ.R. 60(B)(5).

Mezenski asserted that, at the time of the divorce proceedings, Karen

was 67 years old and had been living in an assisted living facility for several years.

He claimed that “medical evidence,” including two “expert evaluations,” established

that Karen had been diagnosed with Parkinson’s Disease with dementia, had severe

cognitive and physical impairment and was unable to care for herself or manage her

finances and property. Mezenski further asserted that the division of assets and

liabilities set forth in the divorce decree was “no longer prospectively equitable”

because (1) the divorce decree provided a “minimal amount of spousal support of

only four (4) years on a twenty-five (25) year marriage,” (2) the Westlake, Ohio

property had “a value in 2018 according to the Cuyahoga County website of over

$657,000.00 * * * leaving equity of approximately $330,000.00, which was

retained by [Daniel],” (3) the Berea, Ohio property awarded to Daniel had a “value

of over $115,000.00” according to “[t]he Cuyahoga County’s website,” “with only

$93,000.00 owed” and (4) “[Daniel] retained the savings account, checking

account, IRA, and a motor vehicle, worth in excess of $691,000.00, whereas [the
value of the] assets that [Karen] retained was a little over $85,000.00.” Mezenski

also alleged that Daniel had “an ownership interest in a very successful business”

that was “not disclosed at the time of the divorce.”

Mezenski claimed that the lengthy delay in filing the motion was

because he had “only recently” acquired “evidence that [Karen] had an expert

evaluation completed on December 7, 2017 indicating her incompetence” and due

to delays in opening an estate following Daniel’s death “in which to initiate litigation

concerning this matter.” The motion was served on appellee Peter Rodeno, executor

of the estate of Daniel A. Rodeno (“Peter”), on or about June 14, 2021.

On July 15, 2021, Mezenski filed an “amended motion” for relief from

judgment in which he submitted four exhibits in support of his motion: (1) a copy

of the August 24, 2018 divorce decree, (2) a copy of a statement of expert evaluation

(Probate Court Form 17.1) executed by Michael J. Dobrovich, D.O., relating to an

evaluation of Karen conducted on July 23, 2020, (3) a copy of the October 1, 2020

magistrate’s decision and “judgment entry granting guardianship” in the probate

case and (4) a copy of a July 17, 2020 letter from Mezenski’s counsel to Dr. Hubert

Fernandez, indicating that he had been retained to file a guardianship for Karen and

requesting that he complete and sign a statement of expert evaluation (Probate

Court Form 17.1) for Karen, and a copy of a statement of expert evaluation, signed

by an unidentified evaluator on September 3, 2020, purportedly relating to an

evaluation of Karen conducted at the Cleveland Clinic on December 7, 2017.
 Peter opposed the motion on the grounds that Mezenski could not

satisfy the requirements for relief under Civ.R. 60(B). Peter argued that the motion

should be denied because (1) Mezenski’s motion was not supported by “sworn

allegations of operative fact” or operative facts that were otherwise “in a form that

meets evidentiary standards,” (2) Mezenski had not established any grounds for

relief under Civ.R. 60(B), (3) Mezenski’s motion was not filed within a reasonable

time and (4) Mezenski had failed to establish that he has a meritorious claim or

defense because (i) the divorce proceedings abated upon Daniel’s death (and, as

such, the trial court lacked jurisdiction to do anything other than enforce the rights

fixed by the divorce decree pursuant to R.C. 2101.24 and 3105.011), (ii) the trial court

lacked jurisdiction to modify the spousal support award or property division

pursuant to R.C. 3105.18 and 3105.171 and (iii) any claims against Daniel’s estate

would be time-barred under R.C. 2117.06.

On October 28, 2021, the trial court denied the motion, indicating

that it was “constrained” by the holdings in Morris v. Morris, 148 Ohio St.3d 138,

2016-Ohio-5002, 69 N.E.3d 664, and Walsh v. Walsh, 157 Ohio St.3d 322, 2019-

Ohio-3723, 136 N.E.3d 460. Specifically, the trial court held that because the

divorce decree did not reserve jurisdiction to modify spousal support or the property

division and because the motion was filed “almost three years after the decree,” the

court was “without jurisdiction to grant the relief sought.”

Mezenski appealed, raising the following three assignments of error

for review:
 Assignment of Error No. 1:
The trial court abused its discretion by failing to grant appellant’s
motion for relief from judgment without holding a hearing where
appellant has alleged operative facts warranting relief under Civ.R.
60(B)(5).

Assignment of Error No. 2:
The trial court abused its discretion by failing to appoint a guardian ad
litem for the protection of appellant pursuant to Ohio Civ.R. 17(B), as
she was an incompetent person.

Assignment of Error No. 3:
The trial court abused its discretion by dismissing appellant’s motion
for relief from judgment based on its conclusion that it was without
jurisdiction to grant the relief requested.

Mezenski’s assignments of error are interrelated. Accordingly, we

address them together.

Law and Analysis

Pursuant to Civ.R. 60(B), “[o]n motion and upon such terms as are

just,” a trial 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.

To prevail on a motion for relief from judgment, the moving party

must demonstrate that: (1) the party has a meritorious defense or claim to present
if the relief is granted; (2) the party is entitled to relief under one of the grounds

stated in Civ.R. 60(B)(1)-(5) and (3) the motion is made within a reasonable time.

Internatl. Total Servs. v. Estate of Nichols, 8th Dist. Cuyahoga No. 107751, 2019-

Ohio-4572, ¶ 7, citing GTE Automatic Elec. v. ARC Industries, 47 Ohio St.2d 146,

351 N.E.2d 113 (1976), paragraph two of the syllabus.

Civ.R. 60(B) “strikes a balance between the finality of judgments and

a perfect result ‘by vesting the courts with broad, but not unlimited authority to set

aside judgments.”’ Ouellette v. Ouellette, 2020-Ohio-705, 152 N.E.3d 528, ¶ 10 (6th

Dist.), quoting Knapp v. Knapp, 24 Ohio St.3d 141, 145, 493 N.E.2d 1353 (1986).

The trial court has discretion both in deciding a motion for relief from judgment

under Civ.R. 60(B) and in determining whether to hold an evidentiary hearing on

the motion. Kostoglou v. Fortuna, 8th Dist. Cuyahoga No. 107937, 2019-Ohio-5116,

¶ 21, citing Williams v. Wilson-Walker, 8th Dist. Cuyahoga No. 95392, 2011-Ohio-

1805, ¶ 7; GMAC Mtge., LLC v. Coleff, 8th Dist. Cuyahoga No. 98917, 2013-Ohio-

2462, ¶ 10. As such, we review a trial court’s ruling on a Civ.R. 60(B) motion for

abuse of discretion. Internatl. Total Servs. at ¶ 6, citing Bank of N.Y. v. Elliot, 8th

Dist. Cuyahoga Nos. 97506 and 98179, 2012-Ohio-5285, ¶ 25. A trial court abuses

its discretion where its decision is unreasonable, arbitrary or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

A decision is unreasonable when “no sound reasoning process”

supports that decision. AAAA Ents. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). An abuse of
discretion also occurs when a court “‘applies the wrong legal standard, misapplies

the correct legal standard, or relies on clearly erroneous findings of fact.’”

Franciscan Communities, Inc. v. Rice, 8th Dist. Cuyahoga No. 109889, 2021-Ohio-

1729, ¶ 33, quoting Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720,

892 N.E.2d 454, ¶ 15 (8th Dist.); see also Ockunzzi v. Smith, 8th Dist. Cuyahoga No.

102347, 2015-Ohio-2708, ¶ 9 (‘“Abuse of discretion’ is a term of art, describing a

judgment neither comporting with the record, nor reason.”); Huffman v. Hair

Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985) (‘“In order to have an

“abuse” in reaching such determination, the result must be so palpably and grossly

violative of fact and logic that it evidences not the exercise of will but perversity of

will, not the exercise of judgment but defiance thereof, not the exercise of reason but

rather of passion or bias.’”), quoting State v. Jenkins, 15 Ohio St.3d 164, 222, 473

N.E.2d 264 (1984).

Mezenski argues that the trial court abused its discretion in denying

his motion for relief from judgment without a hearing because his motion and

supporting materials set forth sufficient operative facts entitling him to relief from

judgment under Civ.R. 60(B)(5).

The trial court denied Mezenski’s motion on the ground that it lacked

jurisdiction “to grant the relief sought,” citing the Ohio Supreme Court’s decisions

in Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664, and Walsh, 157

Ohio St.3d 322, 2019-Ohio-3723, 136 N.E.3d 460.
 In Morris, the Ohio Supreme Court held that “a trial court does not

have jurisdiction under Civ.R. 60(B) to vacate or modify an award of spousal

support in a decree of divorce or dissolution when the decree does not contain a

reservation of jurisdiction to modify the award of * * * spousal support pursuant

to R.C. 3105.18(E).”1 Id. at ¶ 63. In that case, the appellant filed a motion for relief

from judgment pursuant to Civ.R. 60(B)(4) and/or (5) more than 11 years after the

parties’ dissolution was finalized. The dissolution decree incorporated a separation

agreement that required appellant to pay his ex-wife $1,300 a month in spousal

support for her lifetime. The separation agreement further provided that “[t]he

[c]ourt shall not have continuing jurisdiction on this subject.” Appellant requested

that the trial court vacate the spousal support award based on the fact that

appellant’s annual income had sharply decreased from about $100,000 at the time

of the dissolution to less than $4,000. Id. at ¶ 4-8.

1 R.C. 3105.18(E) states, in relevant part:

[I]f a continuing order for periodic payments of money as spousal support is
entered in a divorce or dissolution of marriage action that is determined on
or after January 1, 1991, the court that enters the decree of divorce or
dissolution of marriage does not have jurisdiction to modify the amount or
terms of the alimony or spousal support unless the court determines that the
circumstances of either party have changed and unless one of the following
applies:
(1) In the case of a divorce, the decree or a separation agreement of the
parties to the divorce that is incorporated into the decree contains a
provision specifically authorizing the court to modify the amount or
terms of alimony or spousal support.
(2) In the case of a dissolution of marriage, the separation agreement
that is approved by the court and incorporated into the decree
contains a provision specifically authorizing the court to modify the
amount or terms of alimony or spousal support.
 The court held that “Civ.R. 60(B), a procedural rule, cannot override

the substantive law of R.C. 3105.18” and, therefore, “may not operate to vacate an

award of spousal support, because the only proper mechanism to modify such an

award is the substantive law — i.e., R.C. 3105.18.” Id. at ¶ 55, 57. The court

explained:

In R.C. 3105.18(E), the General Assembly has established the
limits of a trial court’s jurisdiction to modify an award of spousal
support. And a party’s request for modification falls within those
statutory limits only if the parties agree or the court orders that
jurisdiction be reserved. In other words, the trial court must first
determine whether the decree of divorce or dissolution contains a
reservation of jurisdiction. If the trial court lacks jurisdiction to
modify, then the inquiry of the court ends there. To permit a trial court
to exercise jurisdiction on the authority of Civ.R. 60(B) in the absence
of a reservation of jurisdiction would make the force of the procedural
rule greater in scope than the substantive right the General Assembly
established in R.C. 3105.18(E). Because Civ.R. 60(B) is a procedural
rule, it cannot override the substantive law of R.C. 3105.18(E). See
Ohio Constitution, Article IV, Section 5(B).

***

In the case before us today, jurisdiction to modify the decree was
not reserved in the trial court. Therefore, if * * * the trial court
determined that appellant was entitled to relief under Civ.R. 60(B),
then the court would be required to vacate the decree of dissolution and
restore the marriage, which was terminated nearly 16 years ago. This
would be antithetical to our principle of the finality of judgments, which
ensures “certainty in the law and public confidence in the system's
ability to resolve disputes.” * * *

It has been nearly 28 years since this court announced its holding
in [Crouser v. Crouser, 39 Ohio St.3d 177, 529 N.E.2d 1251 (1988)] that
Civ.R. 60(B), a procedural rule, cannot override the substantive law of
R.C. 3105.18. Since that time, the General Assembly has not amended
R.C. 3105.18(E) to confer upon the trial court jurisdiction to modify a
continuing obligation of spousal support when there is fraud, mistake,
or misrepresentation. Perhaps the General Assembly is not inclined to
 do so because it knows that under the statutory scheme that it has
enacted, in an action for divorce, a trial court always has discretionary
authority to order the inclusion of a modification provision, even when
the parties have reached their own full or partial agreement * * *.
Absent legislative action, the authority of Crouser stands.

Id. at ¶ 57, 59, 62.

In Walsh, 157 Ohio St.3d 322, 2019-Ohio-3723, 136 N.E.3d 460, the

Ohio Supreme Court considered the impact of R.C. 3105.171(I) on a trial court’s

ability to grant Civ.R. 60(B) relief with respect to the division of property set forth

in a final divorce decree. R.C. 3105.171(I) states that a property division made in a

divorce decree “is not subject to future modification by the court except upon the

express written consent or agreement to the modification by both spouses.” The

Walsh Court held that “[t]hough Morris dealt with spousal support, rather than a

property distribution, the same principle applies: Civ.R. 60(B) cannot be used to

alter the statutory requirements for the modification of a decree. Because R.C.

3105.171(I) does not permit modification absent the consent of both parties, Civ.R.

60(B) cannot provide a workaround.” Walsh at ¶ 23.

In Walsh, the trial court granted relief from judgment under Civ.R.

60(B) to modify a divorce decree that divided pension benefits even though both

parties had not agreed to the modification. In that case, the parties’ divorce decree,

which adopted a consent judgment of divorce, provided that the wife would receive

a share of the husband’s military pension based upon a marriage term of six years,

representing the period of time the parties had been together during the husband’s

military service. Id. at ¶ 1-5. The decree further provided that a consulting firm
would prepare a qualified domestic relations order (“QDRO”) to implement the

pension division and that the trial court would retain jurisdiction over the QDRO.

Id. at ¶ 4-5. When the consultant attempted to draft the QDRO, it determined that

it could not draft a QDRO under which the wife would receive direct pension

payments from the military because the divorce decree did not specify the wife’s

share of the husband’s pension in percentage terms and because it did not comply

with the military’s “10/10 rule.” Under the “10/10 rule,” in order for a portion of a

service member’s pension benefits to be directly distributed to a former spouse, the

marriage must have lasted at least ten years and the service member must have

provided military service during those ten years. Id. at ¶ 5-8.

Approximately two years after the divorce decree was finalized, the

wife filed a motion for relief from judgment pursuant to Civ.R. 60(B)(4) and (5),

requesting that the court modify the divorce decree to reflect the percentage of the

husband’s pension to which she was entitled and “the parties’ actual date of marriage

and date of divorce, rather than the agreed upon dates which do not meet the 10/10

rule.” Id. at ¶ 9. The trial court granted the wife’s motion for Civ.R. 60(B) relief and

made two modifications to the divorce decree. The trial court stated that the

marriage term was ten years and that the wife was entitled to receive 15 percent of

the husband’s retirement benefits each month. Id. at ¶ 12. The husband appealed,

and the court of appeals affirmed. Id. at ¶ 12-13.

The Ohio Supreme Court reversed the trial court’s judgment,

concluding that “the trial court lacked jurisdiction to modify the length of the
marriage stated in the divorce decree.” Id. at ¶ 16. The court held that by changing

the length of the marriage, the trial court had modified the divorce decree with

respect to a distribution of property. Because both parties did not consent to that

modification, the trial court had no authority to order the change pursuant to R.C.

3105.171(I). The court that stated Civ.R. 60(B) could not “provide a workaround” to

“alter the statutory requirements for modification of a decree.” Id. at ¶ 20, 23. The

court explained:

In addition to the Civ.R. 60(B) requirements for modification,
the divorce and dissolution statutes contain certain statutory
restrictions that limit the authority of a trial court to modify a final
decree. See, e.g., R.C. 3105.171(I); R.C. 3105.18(E); R.C. 3105.63(A)
and (C). Retirement benefits earned during the course of a marriage
constitute marital property. * * * With respect to a modification of a
property division, R.C. 3105.171(I) provides: “A division or
disbursement of property or a distributive award made under this
section is not subject to future modification by the court except upon
the express written consent or agreement to the modification by both
spouses.” (Emphasis added.) * * *

We have examined the interplay between Civ.R. 60(B) and the
statutory provisions that relate to modification in a number of cases,
most recently in Morris v. Morris, 148 Ohio St.3d 138, 2016-Ohio-
5002, 69 N.E.3d 664. * * *

Though Morris dealt with spousal support, rather than a
property distribution, the same principle applies: Civ.R. 60(B) cannot
be used to alter the statutory requirements for the modification of a
decree. Because R.C. 3105.171(I) does not permit modification absent
the consent of both parties, Civ.R. 60(B) cannot provide a workaround.
* * * [W]e think it evident that the trial court’s order was a modification
to the division of property and thus was required to comply with R.C.
3105.171(I).
Walsh at ¶ 19, 21, 23, 26;2 see also Williams v. Williams, 1st Dist. Hamilton No. C-

210331, 2022-Ohio-599, ¶ 12-18 (where husband did not consent to wife’s requested

changes to divorce decree, trial court had no authority, pursuant to R.C. 3105.171(I),

to modify the divorce decree; wife could not use Civ.R. 60(B) to “circumvent” R.C.

3105.171(I)); Ruple v. Ruple, 11th Dist. Lake No. 2021-L-027, 2021-Ohio-2884, ¶ 12

(because the parties did not authorize trial court to modify separation agreement

incorporated into dissolution decree, modification was precluded by statute, and

2 The Morris Court further held that, “in accordance with our precedents,” “if the
parties’ separation agreement, incorporated into a decree of dissolution, reserves the
jurisdiction of the court to modify, a party is limited to seeking relief from judgment under
Civ.R. 60(B)(1), (2), or (3); a litigant may not seek relief from the decree under Civ.R.
60(B)(4) or (5).” Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664, at ¶ 63,
citing Knapp, 24 Ohio St.3d 141, 493 N.E.2d 1353, at paragraph two of the syllabus, and
In re Whitman, 81 Ohio St.3d 239, 245, 690 N.E.2d 535 (1998). Similarly in Walsh, the
court held:

Our caselaw makes clear that even when a decree reserves jurisdiction for the
court to modify the parties’ agreement, a court may not grant relief under
Civ.R. 60(B)(4) or (5); rather it is limited to granting relief under Civ.R.
60(B)(1), (2), and (3) — all of which require the motion to be filed within one
year from the date of the judgment. * * * We have explained that a contrary
rule would “relieve a litigant from the consequences of his voluntary,
deliberate choice” to enter into an agreement. Knapp v. Knapp, 24 Ohio
St.3d 141, 493 N.E.2d 1353 (1986), paragraph two of the syllabus; see Morris
at ¶ 38-41. Further, allowing such motions would be “antithetical to our
principle of the finality of judgments,” Id. at ¶ 59 and encourage mischief by
allowing those with the resources to do so “to bury their ex-spouses in a
mountain of filings,” Id. at ¶ 60. Thus, even if we were to conclude that R.C.
3105.171(I) did not apply, the trial court still lacked authority to modify the
divorce decree.

Walsh at ¶ 28. However, the Walsh Court noted that after Whitman was decided, R.C.
3107.171(I) was amended to require “express written consent or agreement to the
modification by both spouses.” (Emphasis added.) Because the issue was not before the
court, it “express[ed] no opinion * * * as to whether a reservation of jurisdiction would be a
sufficient basis to allow a court to modify a property division via Civ.R. 60(B)(1), (2), or (3)
under the current statutory scheme.” Walsh at ¶ 28, fn. 3.
Civ.R. 60(B) could not “be used as ‘a workaround’”). But see Quesinberry v.

Quesinberry, 2d Dist. Montgomery No. 29192, 2022-Ohio-635, ¶ 17-47

(distinguishing Walsh on the ground that it “did not involve an attempt to use Civ.R.

60(B) to vacate an entire divorce or dissolution decree” and holding that the entire

dissolution decree was “subject to being vacated” under Civ.R. 60(B)(1) where the

parties’ mutual mistake regarding wife’s entitlement to spousal and child support

“means that there was no meeting of the minds and no valid contract on which to

base the dissolution decree”); Ouellette, 2020-Ohio-705, 152 N.E.3d 528, at ¶ 8, 32-

33, 44 (finding “no prohibition” within R.C. 3105.171(I) “to a court’s vacation of the

entire property order or the decree, as appropriate under Civ.R. 60(B)(1), (2), or

(3),” and holding that where a party “demonstrates facts that challenge the very

formation of a consent decree, a motion for relief under Civ.R. 60(B)(1) is

appropriate” and trial court had jurisdiction to consider Civ.R. 60(B)(1) motion

requesting that the trial court vacate, rather than modify, property order or decree,

“even if the remedy of modification was improperly ordered”).

Mezenski argued below that because Karen was incompetent at the

time of the divorce decree and because “it is no longer equitable to enforce the

judgment entry of divorce,” the judgment entry of divorce “must be vacated so this

matter may be heard and decided upon its merits.” Mezenski did not contend that

divorce was not warranted based on the parties’ incompatibility, as found by the trial

court. He challenged only the trial court’s division of property and spousal support
award and sought to have the divorce decree vacated so that a more equitable

property division and spousal support award could be entered.

Mezenski argues that Morris and Walsh do not apply here because in

those cases, “the parties had entered into an agreement” and “there were no

allegations that one party, who was unrepresented, was incompetent at the time the

divorce was granted.” However, nothing in either of those cases appears to limit

their holdings that Civ.R. 60(B) cannot be used to circumvent the statutory

requirements of R.C. 3105.18(E) and 3105.171(I) to instances in which the divorce

decree or dissolution decree incorporated an agreement of the parties. In each of

those cases, the court held that a trial court had no “authority” or “jurisdiction” to

modify a spousal support award or property division in a divorce decree or

dissolution decree without compliance with the applicable statute, R.C. 3105.18(E)

or 3105.171(I), i.e., absent a reservation of jurisdiction in the decree or the express

written consent or agreement to the modification by both spouses.

In this case, as in Morris and Walsh, there was no reservation of

jurisdiction in the divorce decree and no express written consent or agreement to

the modification by both spouses. Indeed, the divorce decree not only does not

contain a reservation of jurisdiction but expressly states, with respect to the spousal

support award, that “[t]he [c]ourt shall not retain jurisdiction to modify this order.”

Further, even if Morris and Walsh were distinguishable from this case based on the

nature of the relief requested — i.e., requesting that the divorce decree be vacated in
its entirety — or the circumstances giving rise to the claim for relief — i.e., Karen’s

alleged incompetency — we would still find no reversible error here.

This is not a case in which the trial court could grant the relief sought

by Mezenski, i.e., rehearing the case on the merits and ordering a more “equitable”

property division and spousal support award, by granting his Civ.R. 60(B) motion.

Even if Morris and Walsh did not preclude the trial court from vacating the divorce

decree in its entirety based on Karen’s alleged incompetency, this is not a case that

could then be “decided on its merits,” i.e., the trial court could not have considered

new evidence and entered a new divorce decree (setting forth a different property

division and spousal support award), if the trial court were to have vacated the

August 24, 2018 divorce decree under Civ.R. 60(B), because Daniel is now deceased.

Daniel died on May 28, 2020, nearly a year before Mezenski filed his

Civ.R. 60(B) motion. “It is axiomatic that an action for divorce abates and cannot

be revived when one of the parties thereto dies.” Diemer v. Diemer, 99 Ohio App.3d

54, 59, 649 N.E.2d 1285 (8th Dist.1994); see also Durgin v. Durgin, 8th Dist.

Cuyahoga No. 98888, 2013-Ohio-1897, ¶ 13 (“‘[T]he death of a party prior to

adjudication of the issues in a pending divorce case causes the action to abate and

ends any jurisdiction that a judge has over the case except to dismiss it.”’), quoting

Concepcion v. Concepcion, 131 Ohio App.3d 271, 275-276, 722 N.E.2d 176 (3d

Dist.1999), citing Coffman v. Finney, 65 Ohio St. 61, 61 N.E. 155 (1901); State ex rel.

Litty v. Leskovyansky, 77 Ohio St.3d 97, 99-102, 671 N.E.2d 236 (1996) (granting

wife a writ of prohibition to prevent domestic relations judge from continuing with
further proceedings in divorce case after husband’s death on the basis that

husband’s death ended any jurisdiction that the court had over the divorce case

except to dismiss it); Porter v. Lerch, 129 Ohio St. 47, 56, 193 N.E.766 (1934)

(“[W]here one or both parties to a divorce action die before a final decree of divorce,

the action abates and there can be no revival. Circumstances have accomplished the

object sought.”).

While the trial court retained jurisdiction, following Daniel’s death, to

“enforce” the rights and obligations “already fixed” by the divorce decree, it lacked

jurisdiction to order or impose new rights or obligations. See, e.g., Durgin at ¶ 16-

17 (“while an action termed ‘personal,’ such as for divorce or for determination and

order of an alimony award, abated upon the death of one party to the action, an

action that sought to enforce fixed rights and liabilities, such as an action to enforce

alimony already awarded, survives the death of that party”) (emphasis deleted),

citing Coffman, 65 Ohio St. 61, 61 N.E. 155; see also Diemer at 59-63 (where divorce

action abated upon plaintiff’s death before the domestic relations court determined

any issues, probate court, rather than domestic relations court, possessed

jurisdiction to determine rights and liabilities of parties with respect to antenuptial

agreement).

Because Daniel had died, if the August 24, 2018 divorce decree were

to be vacated, the trial court could no longer exercise jurisdiction over the divorce

action and grant the relief — a new property division and spousal support award —

sought by Mezenski. Accordingly, we cannot say that the trial court abused its
discretion in denying Mezenski’s Civ.R. 60(B) motion on the ground that it was

“without jurisdiction to grant the relief sought.”

Furthermore, even if the trial court could otherwise grant Mezenski

the relief he requested, we would still find that the trial court did not abuse its

discretion in denying Mezenski’s motion for relief from judgment because he did not

present sufficient allegations of operative facts in his motion and supporting

materials establishing grounds for relief under Civ.R. 60(B)(5) or his entitlement to

an evidentiary hearing on the motion.

Civ.R. 60(B)(5) is a “catchall provision” that reflects the “inherent

power of a court to relieve a person from the unjust operation of a judgment.”

Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983), paragraph

one of the syllabus. It cannot be used as a substitute for any of the more specific

provisions of Civ.R. 60(B). See, e.g., id.; State Farm Mut. Auto. Ins. Co. v. Williams,

8th Dist. Cuyahoga No. 107951, 2019-Ohio-4059, ¶ 43. The grounds for relief under

Civ.R. 60(B)(5) “must be substantial.” Caruso-Ciresi at paragraph two of the

syllabus. Civ.R. 60(B)(5) is to be used “only in extraordinary and unusual cases

when the interests of justice warrant it.” Render v. Belle, 8th Dist. Cuyahoga No.

93181, 2010-Ohio-2344, ¶ 13-14. A motion for relief from judgment under Civ.R.

60(B)(5) must contain operative facts that would warrant relief from judgment

under Civ.R. 60(B)(5). Caruso-Ciresi at 66; Render at ¶ 12. “Broad, conclusory

statements do not satisfy the requirement that a Civ.R. 60(B) motion must be

supported by operative facts that would warrant relief from judgment.” Natl.
Collegiate Student Loan Trust 2007-2 v. Tigner, 2d Dist. Montgomery Nos. 27841

and 28035, 2018-Ohio-4442, ¶ 22.

A party moving for relief from judgment under Civ.R. 60(B) is not

automatically entitled to an evidentiary hearing. PNC Bank, N.A. v. DePalma, 8th

Dist. Cuyahoga No. 97566, 2012-Ohio-2774, ¶ 12. The moving party bears the

burden of proving entitlement to a hearing on the motion. See, e.g., Esplandiu v.

Esplandiu, 8th Dist. Cuyahoga No. 104750, 2017-Ohio-5744, ¶ 13; Adomeit v.

Baltimore, 39 Ohio App.2d 97, 103-105, 316 N.E.2d 469 (8th Dist.1974). ‘““If the

movant files a motion for relief from judgment and it contains allegations of

operative facts which would warrant relief under Civil Rule 60(B), the trial court

should grant a hearing to take evidence and verify these facts before it rules on the

motion.’”’ Kostoglou, 2019-Ohio-5116, at ¶ 37, quoting Coulson v. Coulson, 5 Ohio

St.3d 12, 16, 448 N.E.2d 809 (1983), quoting Adomeit at 105.

“[T]he party’s factual materials must, on the face, demonstrate

timeliness, a reason why the motion should be granted, and a meritorious defense.”

Esplandiu at ¶ 13, citing Danforth v. Danforth, 8th Dist. Cuyahoga No. 86693,

2006-Ohio-2890, ¶ 14. “If the party fails to demonstrate any one of those elements

the trial court need not hold an evidentiary hearing.” Esplandiu at ¶ 13, citing

Adomeit at 105 (“If the material submitted by the movant in support of its motion

contains no operative facts or meager and limited facts and conclusions of law, it

will not be an abuse of discretion for the trial court to refuse to grant a hearing and

overrule the motion.”); see also Kostoglou at ¶ 37-38 (where appellants failed to
attach an affidavit “attesting to the blanket assertions in their motion for relief from

judgment,” trial court did not abuse its discretion in denying appellants’ motion for

relief from judgment without a hearing). A trial court abuses its discretion in

denying a hearing “where grounds for relief from judgment are sufficiently alleged

and are supported with evidence which would warrant relief from judgment.” Kay

v. Marc Glassman, 76 Ohio St.3d 18, 19, 665 N.E.2d 1102 (1996), citing Adomeit at

103, 105.

Mezenski contends that he presented “a colorable claim” and

“arguable grounds for relief,” entitling him to a hearing on his Civ.R. 60(B) motion,

based on: (1) his assertions in his motion that Karen and Daniel had been married

for 25 years, that Karen “had been in an assisted living facility for one and a half (1

1/2) years at the time the divorce was granted” and did not file an answer to the

divorce complaint or appear for the hearing; (2) the two statements of expert

evaluation he submitted in support of his motion, which he contends shows that

Karen “had severe dementia” and “was not capable of managing her daily affairs”;

(3) the magistrate’s decision and related court order in the probate court action

establishing a guardianship for Karen in October 2020 and (4) his assertions in his

motion regarding why it took more than two-and-one-half years to file a motion to

vacate the divorce decree. We disagree.

First, Mezenski’s argument essentially seems to be that Daniel

committed a fraud by seeking a divorce from Karen, knowing that she was

incompetent, without advising the court that she was incompetent, and thereby
obtained a disproportionate share of the marital estate and avoided paying an

appropriate amount of spousal support. See appellant’s brief at 11 (“It is clear that

[a]ppellee committed a fraud upon the [c]ourt by not disclosing [a]ppellant was

incompetent.”). Motions for relief from judgment based on fraud of an adverse

party, however, must be filed within one year of the judgment. Civ.R. 60(B); GTE

Automatic, 47 Ohio St.2d 146, 351 N.E.2d 113, at paragraph two of the syllabus.

Second, as detailed above, Mezenski submitted four exhibits in

support of his motion. He submitted no affidavits in support of his motion. The

only document Mezenski submitted that even arguably relates to Karen’s alleged

incompetency at the time of the divorce proceedings is part of exhibit No. 4 — a copy

of a statement of expert evaluation on Probate Court Form 17.1, signed by an

unidentified “evaluator” on September 3, 2020, purportedly relating to an

evaluation of Karen on December 7, 2017. The form states, “The Statement of

Evaluation does not declare the individual competent or incompetent, but is

evidence to be considered by the [c]ourt.” There is no time stamp or other indication

that the document was filed with or otherwise submitted to the probate court.

As completed, the document indicates that Karen is “mentally

impaired,” has “severe” “[m]ental [r]etardation/[d]evelopmental [d]isabilities” and

had been diagnosed with Parkinson’s disease with dementia. The statement further

indicates that Karen takes various medications and is wheelchair bound, that Karen

has “episodes of alertness, some excessive daytime sleepiness, some hallucinations”

and that Karen was not believed to be capable of caring for her “activities of daily
living,” making decisions regarding “medical treatments, living arrangements and

diet” or managing her finances and property. No “indications of abuse, neglect or

exploitation” were noted. Although the statement, as completed, indicates that the

evaluation was performed at the Cleveland Clinic on December 7, 2017, the line on

which the “[n]ame & [t]itle/[p]rofession” of the individual completing the form was

to be identified is blank, and the handwriting of the individual who completed the

responses to the questions on the form clearly does not match that of the

unidentified evaluator who signed the form nearly three years later on September 3,

2020.

Further, as noted above, although Mezenski contends that Karen was

not competent at the time of the divorce proceedings, he does not dispute that the

trial court properly granted the parties a divorce on grounds of incompatibility.

Mezenski sought to have the divorce decree vacated because he believes the property

division and spousal support award were inequitable. However, Mezenski’s motion

and supporting materials do not contain any operative facts demonstrating that the

property division or $144,000 in spousal support awarded was inequitable.

As discussed above, the trial court’s August 24, 2018 divorce decree

divided the parties’ “separate property, marital property and debts acquired during

the marriage.” The transcript from the hearing was not included in the record on

appeal. Accordingly, it is unknown what evidence was presented at the divorce

hearing regarding the property division and award of spousal support. Simply

because the property division was not equal does not mean it was not equitable. As
noted above, the trial court expressly stated in the divorce decree that the division

of property, “though not equal, is equitable” because the marriage was “a second

marriage for both” parties and “a significant portion” of Daniel’s IRA was

“premarital.” Other than the portion of Daniel’s IRA, which the trial court

specifically referenced as being “premarital” property, it is unknown to what extent

any of the assets divided by the trial court were determined to be separate property

rather than marital property.

Mezenski has not shown that the trial court abused its discretion in

denying his motion for relief from judgment pursuant to Civ.R. 60(B)(5) without a

hearing. Accordingly, we overrule his first and third assignments of error.

Finally, Mezenski claims that the trial court abused its discretion in

failing to appoint a guardian ad litem to protect Karen’s interests in the divorce

proceedings due to her incompetency, pursuant to Civ.R. 17(B). That rule provides,

in relevant part:

When a[n] * * * incompetent person is not otherwise represented in an
action the court shall appoint a guardian ad litem or shall make such
other order as it deems proper for the protection of such minor or
incompetent person.

Civ.R. 17(B) authorizes a court to appoint a guardian ad litem for the

protection of an individual who is incompetent.3 ‘“The trial court’s obligation to

3 R.C. 2111.01(D) defines an “incompetent” person as one who is “so mentally
impaired, as a result of a mental or physical illness or disability, as a result of intellectual
disability, or as a result of chronic substance abuse, that the person is incapable of taking
proper care of the person’s self or property or fails to provide for the person’s family or
other persons for whom the person is charged by law to provide” or one who is “confined
to a correctional institution within this state.”
appoint a guardian or other representative, or make some other proper order, arises

when the court determines that a minor or incompetent person is not otherwise

represented.’” Gallion v. Gallion, 10th Dist. Franklin No. 17AP-556, 2018-Ohio-

3060, ¶ 20, quoting State v. Kendrick, 10th Dist. Franklin No. 98AP-1305, 1999

Ohio App. LEXIS 4622 (Sept. 30, 1999), citing In re Guardianship of Carter, 10th

Dist. Franklin No. 90AP-755, 1991 Ohio App. LEXIS 586 (Feb. 8, 1991). But see

Thomasson v. Thomasson, 153 Ohio St.3d 398, 403, 2018-Ohio-2417, 106 N.E.3d

1239, ¶ 21, 36 (trial court’s order treating appellant as though she had been

adjudicated incompetent and appointing a guardian ad litem to represent her

interests in divorce case that “was not preceded by an adjudication of incompetency,

prior notice, and any opportunity to be heard on the issue” violated appellant’s right

to due process; “Civ.R. 17(B) permits the trial court to appoint a GAL to represent

an adult only when the court has adjudicated the adult to be incompetent.”).

In this case, there is nothing to indicate that Karen had been

adjudicated incompetent at the time of the divorce proceedings. Even assuming

Karen was incompetent at that time and, even assuming, as Mezenski argues, that

the trial court had “an affirmative duty to investigate any reasonable indication that

a pro se party to a lawsuit may be mentally incompetent,” the trial court would have

had no way of knowing that Karen could be incompetent. Karen did not appear

during the divorce proceedings, and no one advised the trial court that there could

be an issue with her competency. Simply because Karen, who was then 67, was living

at Brookdale Westlake Village, a senior living community, at the time of the divorce
proceedings would not reasonably lead the trial court to believe she was

incompetent. Accordingly, the trial court did not abuse its discretion or otherwise

err in failing to appoint a guardian ad litem to protect Karen’s interests during the

divorce proceedings. Mezenski’s second assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant the costs herein taxed.

It is ordered that a special mandate be sent to the Cuyahoga County Common

Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR