[Cite as Simon v. Simon, 2019-Ohio-777.]


STATE OF OHIO                    )                  IN THE COURT OF APPEALS
                                 )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

PAUL SIMON                                          C.A. No.       28962

        Appellant

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
MALINDA SIMON                                       COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellee                                    CASE No.   DR-2007-06-1815

                                DECISION AND JOURNAL ENTRY

Dated: March 6, 2019



        CALLAHAN, Judge.

        {¶1}    Appellant, Paul Simon, appeals an order that denied his motion for relief from

judgment. This Court affirms.

                                               I.

        {¶2}    In the years since Paul and Malinda Simon’s divorce, they have engaged in

continuous litigation. Although the docket reflects numerous filings, three particular events are

relevant to this appeal. On September 24, 2014, the trial court granted Ms. Simon’s motion for

relief from judgment to the extent that a previously undisclosed pension plan had been omitted

from the property distribution in the divorce decree. The trial court ordered Mr. Simon to pay

Ms. Simon $23,793.18 within fourteen days. Mr. Simon attempted to appeal, but this Court

dismissed his appeal as untimely filed. When Mr. Simon failed to abide by the September 2014

order, Ms. Simon moved the trial court to hold him in contempt. The trial court found Mr.

Simon in contempt on February 13, 2015, entered judgment in favor of Ms. Simon in the amount
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of the previous order plus her attorney fees, and sentenced Mr. Simon to twenty days in the

Summit County jail, subject to purge. Mr. Simon did not appeal the contempt order, and he

failed to purge the contempt.

       {¶3}    Shortly thereafter, Ms. Simon moved the trial court to modify her spousal support,

alleging that Mr. Simon was voluntarily underemployed.               She filed a second motion

approximately three months later, alleging a change in circumstances. Mr. Simon, in turn,

moved to terminate his spousal support obligation. On March 20, 2017, the trial court adopted

proposed findings of fact and conclusions of law filed by Ms. Simon and entered judgment on

the uncollected balance of the pension assets with interest, awarded additional attorney fees, and

increased Mr. Simon’s spousal support obligation. Although the reason is unclear, the trial court

entered a second judgment on these issues dated April 7, 2017. Mr. Simon filed objections to the

findings of fact and conclusion of law, but he did not appeal either the March 20, 2017, or the

April 7, 2017, order.

       {¶4}    Mr. Simon moved to vacate the orders issued on September 24, 2014, February

13, 2015, and April 7, 2017, under Civ.R. 60(B)(1) and (5). He also alleged that the trial court

lacked jurisdiction to enter the April 7, 2017, order. The trial court concluded that it did not lack

subject matter jurisdiction to enter the April 7, 2017, order and denied his common law motion to

vacate. With respect to Mr. Simon’s motion for relief from judgment under Civ.R. 60(B), the

trial court concluded that each of the grounds stated in his motion attempted to use Civ.R. 60(B)

as a substitute for appeal and, in the alternative, that the motion was not timely filed. The trial

court denied the motion for these reasons without a hearing, and Mr. Simon filed this appeal.
                                                 3


                                                II.

                              ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       FAILED TO GRANT APPELLANT’S AMENDED MOTION TO VACATE
       JUDGMENT PURSUANT TO CIV.R. 60(B)(1) AND (5).

                              ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO
       RECOGNIZE THAT IT WAS IMPROPER FOR THE COURT TO ADOPT THE
       PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
       SUBMITTED [BY] APPELLEE WITHOUT CONDUCTING A HEARING TO
       ADMIT ANY FACT INTO THE RECORD WHICH COULD BE PROPERLY
       INCORPORATED IN FINDINGS OF FACT AND CONCLUSIONS OF LAW
       IN RULING ON ITS DECISION TO DENY APPELLANT’S AMENDED
       MOTION TO VACATE JUDGMENT PURSUANT TO CIV.R. 60(B)(1) AND
       (5).

       {¶5}    Mr. Simon’s first assignment of error argues that the trial court abused its

discretion by failing to grant his motion for relief from the September 24, 2014, February 13,

2015, and April 7, 2017, orders. His third assignment of error makes the same argument, but

elaborates on one of his grounds in support of his motion for relief from the April 7, 2017, order.

       {¶6}    Civ.R. 60(B) provides, in relevant part:

       On motion and upon such terms as are just, 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; * * * or (5) any
       other reason justifying relief from the judgment.

A party challenging a judgment under Civ.R. 60(B) must demonstrate that (1) the party has a

meritorious defense or claim, (2) a circumstance arises under Civ.R. 60(B)(1)-(5), and (3) the

motion is made within a reasonable time. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47

Ohio St.2d 146 (1976), paragraph two of the syllabus. A trial court’s determination of a motion

for relief from judgment pursuant to Civ.R. 60(B) is reviewed for an abuse of discretion. Strack

v. Pelton, 70 Ohio St.3d 172, 174 (1994).
                                               4


       {¶7}   A trial court does not abuse its discretion by denying a motion for relief from

judgment that is based exclusively upon issues that could have been raised on direct appeal.

Schutte v. Akron Pub. School Bd. of Edn., 9th Dist. Summit No. 23036, 2006-Ohio-4726, ¶ 7,

citing Yoakum v. McIntyre, 7th Dist. Columbiana No. 03 CO 63, 2005-Ohio-7083, ¶ 31. “If we

were to hold differently, judgments would never be final because a party could indirectly gain

review of a judgment from which no timely appeal was taken by filing a * * * motion to vacate

judgment.” State ex rel. Durkin v. Ungaro, 39 Ohio St.3d 191, 193 (1988).

       {¶8}   Mr. Simon argued that the trial court should grant him relief from judgment under

Civ.R. 60(B)(1) and (5), and each of the grounds that he articulated in support of his motion was

based on an alleged mistake by the trial court. As an initial matter, these arguments were not

properly framed as grounds for relief from judgment under Civ.R. 60(B)(5), which “is intended

as a catch-all provision reflecting the inherent power of a court to relieve a person from the

unjust operation of a judgment, but * * * is not to be used as a substitute for any of the other

more specific provisions of Civ.R. 60(B).” Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64

(1983), paragraph one of the syllabus. In other words, “Civ.R. 60(B)(5) only applies when one

of the specific provisions enumerated in Civ.R. 60(B)(1) to (4) does not apply.”     Doyle v. St.

Clair, 9th Dist. Lorain No. 16CA010967, 2017-Ohio-5477, ¶ 13, citing Strack at 174. When a

party alleges mistake as grounds for relief from judgment under Civ.R. 60(B), the motion must

proceed under Civ.R. 60(B)(1), not Civ.R. 60(B)(5). Doyle at ¶ 14.

       {¶9}   A “mistake” for purposes of Civ.R. 60(B)(1), however, is a mistake made by a

party or counsel. Doyle at ¶ 14, citing Culgan v. Miller, 9th Dist. Medina No. 10CA0074-M,

2011-Ohio-6194, ¶ 12. This Court has recognized that “‘a factual or legal mistake on the part of

the trial court is not the type of mistake contemplated by Civ.R. 60(B)(1).’” Culgan at ¶ 12,
                                                 5


quoting Hankinson v. Hankinson, 7th Dist. Mahoning No. 03 MA 7, 2004-Ohio-2480, ¶ 20.

When a party alleges a mistake by the trial court as grounds for relief from judgment under

Civ.R. 60(B)(1), “any such mistake * * * would constitute error from which the aggrieved party

must appeal.” Culgan at ¶ 13. See also Archer v. Dunton, 9th Dist. Summit No. 28519, 2017-

Ohio-8846, ¶ 11. Consequently, the mistakes alleged by Mr. Simon in support of his motion “do

not present grounds for relief under any of the provisions of Civ.R. 60(B), Civ.R. 60(B)(5)

included.” (Emphasis omitted.) Archer at ¶ 11.

       {¶10} In his motion for relief from judgment, Mr. Simon also argued that he was entitled

to common law relief because the trial court lacked jurisdiction to modify his spousal support

retroactively in the April 7, 2017, order. Although he has framed his assignments of error in

terms of Civ.R. 60(B), they are also not well taken to the extent that he argues that the trial court

should have granted him common law relief from judgment.

       {¶11} Ohio courts have the inherent authority to vacate void judgments without

reference to Civ.R. 60(B). Patton v. Diemer, 35 Ohio St.3d 68 (1988), paragraph four of the

syllabus. A void judgment may be vacated through a common law motion to set aside the

judgment, but one that is voidable must be set aside as provided by Civ.R. 60(B). In re R.P., 9th

Dist. Summit No. 26271, 2012-Ohio-4799, ¶ 19, citing State ex rel. DeWine v. 9150 Group, L.P.,

9th Dist. Summit No. 25939, 2012–Ohio–3339, ¶ 7.

       {¶12} The first argument to which Mr. Simon alludes in his brief is that the trial court

lacked jurisdiction to enter the April 7, 2017, order because it did not reserve jurisdiction to

modify his spousal support obligation in the divorce decree. When a trial court modifies spousal

support without a reservation of jurisdiction under R.C. 3105.18(E)(1), however, the
                                                 6


modification order is voidable, not void. See, e.g., Michaels v. Michaels, 9th Dist. Medina No.

11CA0012-M, 2012-Ohio-641, ¶ 5-9.

       {¶13} The second argument that Mr. Simon references is that the trial court lacked

jurisdiction to make the spousal support modification retroactive to a period of time in which an

appeal to this Court was pending. A trial court does not have jurisdiction to act while an appeal

is pending “except to take action in aid of the appeal.” In re S.J., 106 Ohio St.3d 11, 2005-Ohio-

3215, ¶ 9, citing State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio

St.2d 94, 97 (1978). Mr. Simon does not maintain that there was an appeal pending in this Court

on April 7, 2017, when the trial court entered the spousal support order, but that an appeal was

pending approximately five years earlier on the date to which the trial court made the

modification effective.    Any error in determining the date to which the modification was

retroactive would also render the order voidable, not void.      Because each of the grounds Mr.

Simon has referenced in support of his common law motion would render the April 7, 2017,

order voidable, the trial court did not err by denying his motion on that basis.

       {¶14} Mr. Simon’s first and third assignments of error are overruled.

                               ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO
       CONDUCT AN EVIDENTIARY HEARING ON APPELLANT’S MOTION TO
       VACATE PURSUANT TO CIV.R. 60(B)(1) AND (5) AND FAILED TO
       RECOGNIZE THAT NO TESTIMONY OR EVIDENCE HAD EVER BEEN
       ADMITTED INTO THE RECORD WHEN RULING ON ITS DECISION TO
       DENY APPELLANT’S AMENDED MOTION TO VACATE JUDGMENT
       PURSUANT TO CIV.R. 60(B)(1) AND (5).

       {¶15} In his second assignment of error, Mr. Simon has argued that the trial court erred

by denying his motion for relief from judgment without conducting a hearing. This Court

disagrees.
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       {¶16} “A person filing a motion for relief from judgment under Civil Rule 60(B) is not

automatically entitled * * * to a hearing on the motion.” Adomeit v. Baltimore, 39 Ohio App.2d

97, 103 (8th Dist.1974). A hearing is only required when a moving party alleges operative facts

that would warrant relief. Coulson v. Coulson, 5 Ohio St.3d 12, 16 (1983), citing Adomeit at

103.   See also Primo Bedding Co., Inc. v. R. Acres, Inc., 9th Dist. Summit No. 24535, 2009-

Ohio-3971, ¶ 10.

       {¶17} As noted in this Court’s discussion of Mr. Simon’s first and third assignments of

error, the basis for each of his arguments was that he was entitled to relief from the trial court’s

judgments because of mistakes on the part of the trial court. He has, therefore, not alleged any

operative facts that would warrant relief under Civ.R. 60(B), and the trial court was not required

to conduct a hearing. Mr. Simon’s second assignment of error is overruled.

                                                III.

       {¶18} Mr. Simon’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas, Domestic Relations Division, is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
                                                8


period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    LYNNE S. CALLAHAN
                                                    FOR THE COURT



CARR, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

MICHAEL J. CONNICK, Attorney at Law, for Appellant.

JAMES L. LANE, Attorney at Law, for Appellee.
