[Cite as Walk v. Walk, 2016-Ohio-7247.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                   MONTGOMERY COUNTY

 ROBIN M. WALK (MACKEY)                         :
                                                :   Appellate Case No. 27052
         Plaintiff-Appellant                    :
                                                :   Trial Court Case No. 2012-LS-03
 v.                                             :
                                                :   (Domestic Relations Appeal from
 KURT E. WALK                                   :    Common Pleas Court)
                                                :
         Defendant-Appellee                     :
                                                :

                                           ...........
                                          OPINION
                           Rendered on the 7th day of October, 2016.
                                           ...........

LAUREN L. CLOUSE, Atty. Reg. No. 0084083, Surdyk, Dowd & Turner Co., LPA, 7681
Tylers Place Boulevard, Suite 3, West Chester, Ohio 45069
       Attorney for Appellant

F. ANN CROSSMAN, Atty. Reg. No. 0043525, and MICHELLE M. MACIOROWSKI, Atty.
Reg. No. 0067692, Crossman & Maciorowski, LLC, 7051 Clyo Road, Centerville, Ohio
45459
      Attorneys for Appellee

                                          .............

FAIN, J.

              Plaintiff-appellant Robin M. Walk, nka Mackey, appeals from an order of the

Montgomery County Common Pleas Court, Division of Domestic Relations, overruling her
                                                                                         -2-


Civ.R. 60 motion for relief from judgment.

            We conclude that the trial court did not abuse its discretion in overruling the

motion, because Mackey failed to demonstrate that she is entitled to relief under the Rule.

Accordingly, the order of the trial court from which this appeal is taken is Affirmed.



                             I. The Course of Proceedings

            Robin and Kurt Walk were married in 1989. They had two children as a

result of their union. They were divorced in October 2012, at which time, both of their

children were minors. Kurt Walk was ordered to pay both spousal and child support.

            In May 2014, Kurt Walk moved to modify his spousal and child support

obligations, based on the fact that he had lost his employment. Robin Walk, nka Robin

Mackey, moved to hold Walk in contempt. After a hearing, the magistrate entered a

decision overruling the motion for contempt. On the same date, the magistrate entered

a separate decision sustaining Walk’s motion for modification of support.

            Mackey filed a single document containing objections both to the magistrate’s

decision modifying support, and to the decision overruling the contempt motion.           In

October 2015, during a hearing on a matter unrelated to this appeal, the magistrate and

the parties discussed the fact that the magistrate had made an error with regard to the

calculation of child support as set forth in the June decision regarding modification of Mr.

Walk’s support obligation. The magistrate entered an amended decision on November

5, 2015, which contained the same language as the June decision modifying support,

except that it contained the correct child support calculation.

            In November 2015, the trial court adopted the magistrate’s amended
                                                                                        -3-


decision, and ordered relief accordingly.     In its order, the trial court noted that no

objections had been filed regarding the magistrate’s amended decision. The trial court

also stated that it had found no error of law or defect on the face of the magistrate’s

amended decision. The trial court also overruled Mackey’s objections to the magistrate’s

decision on contempt.

              Thereafter, Mackey moved for relief from judgment pursuant to Civ.R. 60(A)

and (B)(1).    The trial court overruled the motion, finding that Mackey had failed to

demonstrate that there was a clerical error regarding the judgment and had failed to

demonstrate mistake, inadvertence, surprise or excusable neglect.

              Mackey appeals from the overruling of her Civ.R. 60(B) motion.



          II. No Appeal Has Been Taken from the Order of the Trial Court

               Adopting the Amended Magistrate’s Decision; Therefore,

              the Merits of that Order Are Not Subject to Appellate Review

              Ms. Mackey’s First Assignment of Error states as follows:

      THE TRIAL COURT ERRED IN FAILING TO RULE ON THE PENDING

OBJECTIONS TO THE MAGISTRATE’S DECISION FILED ON OCTOBER 21,

2015 PURSUANT TO CIV.R. 53(E)(4)(b).

               Mackey contends that the order of the trial court adopting the amended

decision of the magistrate must be reversed, because the trial court erred when it found

that no objections to that amended decision were pending.

               A review of the record reveals that Mackey did not appeal from the order of

the trial court adopting the amended decision of the magistrate. She moved for relief,
                                                                                       -4-


pursuant to Civ.R. 60(B), but did not appeal. A Civ. R. 60(B) motion for relief from

judgment “is not available as a substitute for a direct appeal and may not be used as a

device to attack the merits of a judgment as a matter of law.” Western Ohio Bank & Trust

Co. v. J's Restaurant, 2d Dist. Miami No. 84-CA-22, 1985 WL 7668, *3 (Feb. 27, 1985).

Therefore, “an appeal from an order denying such a motion does not permit review of the

merits of the judgment from which relief is sought.” Id. In short, the rule may not be

used “to circumvent or toll the time requirements for filing an appeal.” Id.

              Therefore, we may not address the issue of whether the trial court erred by

adopting the amended decision of the magistrate. Accordingly, the First Assignment of

Error is overruled.



      III. The Fact that a Party Had Objected to a Prior Magistrate’s Decision

          Is Not Grounds for Civ. R. 60 Relief from an Order Adopting the

                      Magistrate’s Subsequent Amended Decision

              Ms. Mackey’s Second Assignment of Error states:

       THE LOWER COURT ERRED IN OVERRULING APPELLANT’S MOTION FOR

RELIEF FROM JUDGMENT PURSUANT TO CIV.R. 60(A) AND (B).

              Mackey contends that the trial court should have sustained her motion for

relief from judgment. In support, she claims that the trial court was “put on notice” that

her objections, some of which were not addressed by the magistrate’s amended decision,

remained pending at the time the trial court adopted the magistrate’s amended decision.

She argues that it was the duty of the trial court to address those objections and conduct

an independent review of the amended decision, and that the failure to do so constitutes
                                                                                           -5-


either a clerical error, or mistake, inadvertence, surprise or excusable neglect.

              Civ.R. 60(A) provides that “[c]lerical mistakes in judgments, orders or other

parts of the record and errors therein arising from oversight or omission may be corrected

by the court at any time on its own initiative or on the motion of any party * * *.”

              A Civ.R. 60(A) clerical error means “the type of error identified with mistakes

in transcription, alteration or omission of any papers and documents which are

traditionally or customarily handled or controlled by clerks but which papers or documents

may be handled by others. It is a type of mistake or omission mechanical in nature which

is apparent on the record and which does not involve a legal decision or judgment by an

attorney. * * * ” Martin v. Hatfield, 10th Dist. Franklin No. 03AP-182, 2003-Ohio-4508, ¶

7, citing Dentsply Internatl., Inc. v. Kostas, 26 Ohio App.3d 116, 118, 498 N.E.2d 1079

(8th Dist. 1985), quoting In re Merry Queen Transfer Corp., 266 F.Supp. 605, 607

(E.D.N.Y.1967).

              In the case before us, the trial court found that there was no clerical mistake.

We agree.     The trial court determined, correctly, that no objections had been filed

regarding the amended decision.        The trial court was apparently aware of the prior

objections, since it subsequently ruled upon the specific objections contained therein

relating to the magistrate’s contempt decision. The prior objections made with regard to

the first decision on support issued by the magistrate did not state, nor were they

amended to state, that they applied to the amended support decision.

              We next turn to the issue of whether Mackey is entitled to Civ.R. 60(B) relief.

Civ.R. 60(B) states that “[o]n 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
                                                                                              -6-


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.”

              In order to grant relief on a motion filed pursuant to Civ.R. 60(B), a trial court

must determine that the movant has demonstrated (1) the existence of a meritorious

defense or claim, (2) entitlement to relief under one of the grounds set forth in the Rule,

and (3) that the motion is made within a reasonable time. GTE Automatic Elec., Inc. v.

ARC Industries, 47 Ohio St.2d 146, 150–51, 351 N.E.2d 113 (1976).

              The trial court found that Mackey failed to demonstrate mistake,

inadvertence, surprise, excusable neglect, or any other reason sufficient to justify relief

from judgment. We agree. Mackey acknowledged that she did not file any objections

to the amended magistrate’s decision.           She did not claim mistake, inadvertence,

surprise, or excusable neglect on her part. Instead, she argued that the error was the

fault of the trial court, because it should have inferred that the objections to the support

decision were still pending after the amended support decision was filed. We conclude

that the trial court, in the absence of any filing indicating that the objections to the previous

decision were intended to apply to the superseding amended decision, did not abuse its

discretion in concluding that Mackey had not objected to the amended decision.
                                                                                       -7-




               “The decision to grant or deny a motion for Relief from Judgment pursuant

to Civ.R. 60(B) is committed to the sound discretion of the trial court.” Morris v. Grubb,

2d Dist. Montgomery No. 15177, 1996 WL 132202, * 1 (Mar. 8, 1996). We find no abuse

of that discretion.

              The Second Assignment of Error is overruled.



                                       IV. Conclusion

              Both of Ms. Mackey’s assignments of error being overruled, the order of the

trial court overruling her Civ.R. 60 motion for relief is Affirmed.


                                       .............



FROELICH, J., and HALL, J., concur.


Copies mailed to:

Lauren L. Clouse
F. Ann Crossman
Michelle M. Maciorowski
Hon. Denise L. Cross
