dissenting
I respectfully disagree with the holding of the majority that a trial judge abuses its discretion by granting a Civ. R. 60(B) motion to vacate his own prior judgment which the motion shows conclusively to be erroneous as a matter of law.
Specifically, I do not agree with the majority's conclusion that the circumstances of this case are necessarily outside the parameters of Civ. R. 60(B). On the contrary, I believe a ruling of the court which is subsequently discovered to be in direct conflict with a statutory requirement could reasonably be considered either a "mistake" (of law) under 60(BXD or "any other reason justifying relief from the judgment" under 60(B) (5).
Nor can I accept the conclusion of the majority that the absolute statutory bar to a unilateral motion for increased child support in this case is not meritorious defense under Argo Plastic Products Co. v. Cleveland, supra. I would readily agree that such a defense could have been construed by the trial court as having been waived, both by the failure of the appellee to assert it at the original hearing and his subsequent failure to file a timely notice of appeal from the original decision of the trial court. On the other hand, I do not believe the trial court was compelled to deny the 60(B) motion on the basis of such a waiver. Rather, I believe such a ruling was within the discretion of the trial court. The trial court chose not to invoke waiver as a bar to the defensa By now choosing to invoke the waiver, we have simply substituted our judgment for that of the trial court on a discretionary matter.
Finally, I am not convinced that the authorities cited by the majority are directed to the circumstances of this casa With the exception of our own Freeman decision, the remaining cases involved blatant attempts to re-open a prior judgment for the sole purpose of allowing a previously untimely or unfiled notice of appeal. Indeed, those cases* unlike the case before us, primarily involved efforts to vacate and then reinstate the same judgment.
On the other hand, the Freeman decision simply holds that an "abuse of discretion" claim does not constitute a ground for relief under Civ. R. 60(BX1X5). However, the present case has not reached the stage of Freeman, supra. In other words, it remains a matter of speculation as to whether the appellee here would have attempted to improperly broaden the scope of his appeal to address the original judgment had he been denied 60(B) relief. However, I believe the proper *57time to address that issue is when such an appeal is actually before us.
Likewise the Farmers Production Credit Assn. of Ashland decision cited by the majority also involves an attempt to "reopen" a summary judgment (which had been affirmed on appeal) in order to assert a defense which was purportedly based upon a regulation but was apparently in considerable factual dispute and expressly found not to be meritorious on either ground. Id. at 74-75. In my view, a Civ. R. 60(B) motion alleging a summary judgment was "incorrectly decided" based upon the trial court's failure to consider a possible dispute of fact is clearly distinguishable from a Civ. R. 60(B) motion which demonstrates conclusively that a prior order of the court is directly contrary to statutory law, I believe the trial court should be allowed the discretion to resolve the latter situation.
The issue in this case is simply whether the trial court may grant 60(B) relief when confronted with a prior ruling of that court which is established to be erroneous as a matter of law. By determining such action to be an abuse of discretion, the majority today effectively removes that prerogative from the trial judge. I am not comfortable with that proposition. Nor am I convinced that such a decision is necessary under Civ. R. 60(B).
For these reasons, I would affirm the decision of the trial court in this case