[Cite as Guadalupe v. Minadeo, 2012-Ohio-5071.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 98077


                           GLADISA M. GUADALUPE
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                              LAWRENCE MINADEO
                                                        DEFENDANT-APPELLEE

             [Appeal by Steven E. Wolkin, Guardian Ad Litem]



                                         JUDGMENT:
                                          AFFIRMED


                                    Civil Appeal from the
                             Cuyahoga County Common Pleas Court
                                 Domestic Relations Division
                                     Case No. D-333104

        BEFORE: S. Gallagher, J., Stewart, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED: November 1, 2012
ATTORNEY FOR APPELLANT

Steven E. Wolkin
820 W. Superior Avenue
Suite 510
Cleveland, OH 44113


ATTORNEYS FOR APPELLEES

For Gladisa M. Guadalupe

John V. Heutsche
John V. Heutsche Co., L.P.A.
Hoyt Block Building, Suite 220
700 West St. Clair Avenue
Cleveland, OH 44113-1274

For Lawrence Minadeo

Anne C. Fantelli
Gregory J. Moore
Stafford & Stafford Co., L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, OH 44114
SEAN C. GALLAGHER, J.:

        {¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1, the trial court records, and briefs of counsel. The guardian

ad litem and counsel on behalf of the child appeals from the denial by the Cuyahoga

County Court of Common Pleas, Domestic Relations Division, of his motion for relief of

judgment and motion for guardian ad litem fees.    For the reasons that follow, we affirm.

        {¶2} The parties were married on July 5, 2001, and had one child.     Mother filed

her complaint for divorce on August 25, 2010. Father filed his answer on September 29,

2010.

        {¶3} The parties engaged in settlement negotiations relating to custody and

visitation on November 7, 2011, the day set for trial before a magistrate.   The guardian

ad litem participated in the negotiations.    The parties reached and signed a shared

parenting plan following the negotiations.

        {¶4} Because the parties signed the shared parenting plan and all that remained to

be decided was the division of property, and the parties’ assets and debts, the magistrate

told the guardian ad litem that it was not necessary for him to attend the next day’s

negotiations. The parties settled all remaining issues on November 8, 2011.
       {¶5} The guardian ad litem received on November 14, 2011, a copy of the divorce

decree dated November 9, 2011.          He found the following language inserted in it:

       The Report of the Guardian Ad Litem is stricken from the record and that
       Report * * * shall remain confidential and under seal. Plaintiff,
       Defendant, or any counsel involved in these proceedings are enjoined from
       discussing any portion of [the report] with any person or from publishing,
       disseminating, or circulating the [report] or any portions thereof.

       {¶6} On December 13, 2011, the guardian ad litem filed a motion for relief of

judgment and a motion for guardian ad litem fees.            In the motion for relief of judgment,

he asserted the parties and their counsel inserted the above language in the divorce decree

without his knowledge and consent. In his other motion, the guardian ad litem sought

additional fees for the work done in connection with the motion for relief from judgment.1

 The trial court denied the motions on March 6, 2012, without holding a hearing on either

motion.

       {¶7} In his first assignment of error, the guardian ad litem repeats the arguments

contained in his motion for relief of judgment. He asserts the trial court abused its

discretion by not granting the motion and thereby removing the contested language from

the divorce decree and returning the guardian ad litem’s report to the court file.                   The

guardian ad litem argues that by not doing so, he is barred from ever communicating with

any future guardian appointed on behalf of the child, either verbally or through his report.

 In the second assignment of error, the guardian ad litem argues that the trial court abused



       1
           The guardian ad litem was paid for all other fees for services provided in this matter.
its discretion when it failed to conduct an evidentiary hearing before ruling on his motion

for relief of judgment and motion for guardian ad litem fees.

       {¶8} A Civ.R. 60(B) motion for relief from judgment, however, may not be used

as a substitute for a timely appeal. Doe v. Trumbull Cty. Children Servs. Bd., 28 Ohio

St.3d 128, 502 N.E.2d 605 (1986), paragraph two of the syllabus. When a party merely

reiterates arguments that concern the merits of the case and that could have been raised on

appeal, relief under Civ.R. 60(B) is not available as a substitute for appeal. Wozniak v.

Tonidandel, 121 Ohio App.3d 221, 228, 699 N.E.2d 555 (8th Dist.1997).

       {¶9} The guardian ad litem’s appeal and Civ.R. 60(B) motion relate to the final

divorce decree dated November 9, 2011.       In his appellate brief, the guardian ad litem

admitted to receiving a copy of the decree on November 14, 2011.           The guardian ad

litem did not timely appeal from the decree; rather, he filed a Civ.R. 60(B) motion for

relief of judgment on December 13, 2011.     In that motion, the guardian ad litem failed to

allege or demonstrate any circumstances arising under Civ.R. 60(B)(1) through (5) to

support relief from judgment that could not have been raised in a direct appeal.        His

motion was, therefore, improperly filed as a substitute for an appeal, and the trial court

correctly denied it as well as the motion for guardian ad litem fees. Doe; Wozniak.

       {¶10} The guardian ad litem’s assignments of error are overruled.

       {¶11} Judgment affirmed.

       It is ordered that appellees recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common

pleas court, domestic relations division, 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.




SEAN C. GALLAGHER, JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
MELODY J. STEWART, P.J., CONCURS IN JUDGMENT ONLY WITH SEPARATE
OPINION


MELODY J. STEWART, P.J., CONCURRING IN JUDGMENT ONLY:

       {¶12} I concur with the decision reached by the majority, but write separately only

to state that I believe the guardian ad litem appropriately filed a Civ.R. 60(B) motion for

relief from judgment.   The motion was not a substitute for an appeal because the reason

the guardian sought relief from judgment was because there were provisions included in

the order about which he was not consulted and to which he did not agree.          I do not see

how this claim could be examined via the record on appeal.
