[Cite as Stevens v. Stevens, 2016-Ohio-7925.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                        JUDGES:
SOPHIA STEVENS                                  :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. John W. Wise, J.
                         Plaintiff-Appellant    :       Hon. Craig R. Baldwin, J.
                                                :
-vs-                                            :
                                                :       Case No. 16-CA-17
ROBERT STEVENS                                  :
                                                :
                      Defendant-Appellee        :       OPINION




CHARACTER OF PROCEEDING:                            Civil appeal from the Fairfield County Court
                                                    of Common Pleas, Domestic Relations
                                                    Division, Case No. 2014 DR 00048

JUDGMENT:                                           Affirmed



DATE OF JUDGMENT ENTRY:                             November 23, 2016



APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

JASON DONNELL                                       ANGELA SEIMER
118 S. Pearl Street                                 437 N. Broad Street
Lancaster, OH 43130                                 Lancaster, OH 43130
[Cite as Stevens v. Stevens, 2016-Ohio-7925.]


Gwin, P.J.

        {¶1}     Appellant appeals the April 20, 2016 judgment entry of the Fairfield County

Court of Common Pleas, Domestic Relations Division, denying her Civil Rule 60(B)

motion to vacate.

                                           Facts & Procedural History

        {¶2}     Appellant Sophia Stevens and appellee Robert Stevens were married on

November 21, 1992. The parties had two children during the marriage, M.S., born April

9, 2000 and H.S., born December 5, 2003. On February 5, 2014, appellant filed a

complaint for divorce against appellee.

        {¶3}     On July 13, 2015, the parties filed a handwritten memorandum judgment

entry. The memorandum entry provides it will be filed, but not journalized, and that the

attorney of record shall prepare a final judgment entry to be filed with the court in

accordance with the local rules. With regards to child support, the handwritten judgment

entry provides that “Father shall be obligated to pay child support to be calculated

pursuant to using the parties’ documented current incomes, per attached worksheet.”

The handwritten memorandum judgment entry did not include a provision with regards to

child support arrearages.

        {¶4}     On September 1, 2015, an agreed judgment entry and decree of divorce

was filed and journalized.           The judgment entry was signed by appellant, appellee,

appellant’s attorney, appellee’s attorney, and the trial court judge. As to child support,

the agreed judgment entry and decree of divorce provides that appellee “shall pay child

support pursuant to the attached child support worksheet” and “the above child support
Fairfield County, Case No. 16-CA-17                                                      3


amount agreed upon by the parties was computed in accordance with Chapter 3119 of

the Ohio Revised Code. A copy of the Child Support Worksheet is attached.”

       {¶5}   Appellant filed a motion to vacate pursuant to Civil Rule 60(A) and/or Civil

Rule 60(B). In her motion, appellant alleged that appellee was supposed to pay $3,240.17

in child support arrearages and this was inadvertently omitted from both the handwritten

memorandum journal entry and the agreed journal entry/decree of divorce. The trial court

issued a notice that it set her motion for a non-oral hearing.

       {¶6}   Appellant filed a supplemental memorandum in support of her motion on

April 12, 2016. Attached to the supplemental memorandum were the following: Exhibit

A, a copy of the agreed journal entry and decree of divorce; Exhibit B, a copy of the

Fairfield County Child Support Enforcement Agency financial transaction history for the

period of January 1, 2014 through July 9, 2015 showing an unpaid balance of $3,240.17;

and Exhibit C, a copy of the handwritten memorandum journal entry. In the supplemental

memorandum, appellant argues she has a meritorious defense in that she made

compromises during negotiations in exchange for appellee paying the child support

arrearages, including: agreeing to waive spousal support, relinquishing rights in the

Millfield property, allowing appellee to claim M.S. as a dependent every other year for tax

purposes, and allowing appellee to retain rent from the marital property.

       {¶7}   Appellee filed a memorandum contra to appellant’s motion on April 13,

2016, and argued there was no intent by appellee to preserve the arrears, as indicated

by both the memorandum journal entry and the agreed journal entry/decree of divorce.

Further, that both parties made compromises in negotiations and such compromises were

not specifically related to the arrearages.
Fairfield County, Case No. 16-CA-17                                                         4


       {¶8}   The trial court issued a judgment entry denying appellant’s motion on April

20, 2016. The trial court first found the omission was not a clerical mistake and would be

a substantive change; thus, it was not proper to correct the entry pursuant to Civil Rule

60(A). As to Civil Rule 60(B)(1), the trial court found appellant did not present operative

facts to warrant a grant of 60(B) motion on the basis of an alleged mistake or

inadvertence. The trial court stated unsworn allegations alone are not sufficient. Further,

that mere carelessness on a litigant’s part is not sufficient to rise to the level of mistake,

inadvertence, and/or excusable neglect.

       {¶9}   Appellant appeals the April 20, 2016 judgment entry of the Fairfield County

Court of Common Pleas, Domestic Relations Division, and assigns the following as error:

       {¶10} “I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN

DENYING APPELLANT’S RULE 60(B) MOTION BEFORE HOLDING AN EVIDENTIARY

HEARING.”

                                                 I.

       {¶11} The decision whether to grant a motion for relief from judgment under Civ.R.

60(B) lies within the trial court’s sound discretion. Griffey v. Ragan, 33 Ohio St.3d 75,

514 N.E.2d 1122 (1987). In order to find an abuse of discretion, we must determine the

trial court’s decision was unreasonable, arbitrary, or unconscionable.         Blakemore v.

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

       {¶12} Civil Rule 60(B) provides that “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 * * *.” A party seeking relief from judgment pursuant to Civil Rule 60(B) must
Fairfield County, Case No. 16-CA-17                                                        5


show: (1) a meritorious defense or claim to present if relief is granted; (2) entitlement to

relief under one of the grounds set forth in Civ.R. 60(B)(1)-(5); and (3) the motion must

be timely filed. GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146,

351 N.E.2d 113 (1976). A failure to establish any one of these three requirements will

cause the motion to be overruled. Argo Plastic Prod. Co. v. Cleveland, 15 Ohio St.3d

389, 474 N.E.2d 328 (1984).

       {¶13} In her assignment of error, appellant first contends the trial court abused its

discretion in not granting her motion pursuant to Civ.R. 60(B)(1) for excusable neglect.

In her motion for relief, appellant argues the failure to include the provision for appellee

to pay her child support arrears was the result of “mistake, inadvertence, surprise, or

excusable neglect” as such provision was “lost in negotiation.” To determine whether

neglect is “excusable” under Civ.R. 60(B)(1), a court must consider all the surrounding

facts and circumstances. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 520 N.E.2d

564 (1988).

       {¶14} Excusable neglect has been further defined as some action “not in

consequence of the party’s own carelessness, inattention, or willful disregard of the

process of the court, but in consequence of some unexpected or unavoidable hindrance

or accident.” Maggiore v. Barensfeld, 5th Dist. Stark Nos. 201CA00180, 2011CA00230,

2012-Ohio-2909. It is well settled that mere carelessness on a litigant’s part, or on the

part of his or her attorney, is not sufficient to rise to the level of mistake, inadvertence,

surprise, or excusable neglect. Muskingum Watershed Conservatory District v. Kellar,

5th Dist. Tuscarawas No. 2011AP020009, 2011-Ohio-6889; Blaney v. Kerrigan, 5th Dist.

Fairfield No. 12-CA-86, 1986 WL 8646 (Aug. 4, 1986). “Excusable neglect is not present
Fairfield County, Case No. 16-CA-17                                                        6


if the party seeking relief could have prevented the circumstances from occurring.”

Maggiore v. Barensfeld, 5th Dist. Stark Nos. 201CA00180, 2011CA00230, 2012-Ohio-

2909, citing Porter, Wright, Morris & Arthur, LLP v. Frutta Del Mondo, Ltd., 10th Dist.

Franklin No. 08AP-69, 2008-Ohio-3567.

       {¶15} In this case, we find the trial court did not abuse its discretion in finding no

excusable neglect under these facts and circumstances. The failure to include the

provision with regards to the payment of child support arrears was not the consequence

of some unexpected or avoidable hindrance or accident. Rather, appellant could have

controlled or guarded against the event by making sure the child support arrearage

provision was contained in the handwritten memorandum and/or in the agreed judgment

entry/decree of divorce that both she and her attorney signed.

       {¶16} In her assignment of error, appellant next argues the trial court erred in

failing to hold an evidentiary hearing on her motion to judge the credibility of appellant

and appellee. We disagree.

       {¶17} The standard for when an evidentiary hearing on a Civil Rule 60(B) motion

is necessary is set forth in Cogswell v. Cardio Clinic of Stark County, Inc., 5th Dist. Stark

No. CA-8553, 1991 WL 242070 (Oct. 21, 1991). In Cogswell, this Court held under Civil

Rule 60(B) that a hearing is not required unless there exist issues supported by

evidentiary quality affidavits. Id. A trial court must hold an evidentiary hearing when the

motion and supporting evidence contain sufficient allegations of operative facts, which

would support a meritorious defense to the judgment. Id.; Capital One Bank (USA), N.A.

v. King, 5th Dist. Stark No. 2014CA00232, 2015-Ohio-3600.
Fairfield County, Case No. 16-CA-17                                                         7


       {¶18} In this case, in her brief attached to her motion for relief and in her

supplemental memorandum, appellant disputed the amount of child support appellee

owed her, arguing that both the handwritten agreement and the final judgment entry were

supposed to include a provision in which appellee was to pay appellant for child support

arrearages in the amount of $3,240.17. This is a dispute of fact. Appellant did not attach

evidentiary quality affidavits to her motion for relief from judgment to support her dispute

of fact as she did not file any affidavits in support of her motion. Accordingly, we find the

trial court did not err in not holding an evidentiary hearing, as there were no supportive

affidavits containing allegations of operative fact that support a meritorious defense

entitling appellant to an evidentiary hearing. Chase Home Finance, LLC v. Lindenmayer,

5th Dist. Licking No. 15-CA-32, 016-Ohio-1202; Capital One Bank (USA), N.A. v. King,

5th Dist. Stark No. 2014CA00232, 2015-Ohio-3600. As this Court has previously noted,

“unsworn allegations of operative facts contained in a motion for relief from judgment filed

under Civ.R. 60(B) or in a brief attached to the motion are not sufficient evidence upon

which to grant a motion to vacate judgment.” Blaney v. Kerrigan, 5th Dist. Fairfield No.

12-CA-86, 1986 WL 8646 (Aug. 4. 1986), quoting East Ohio Gas v. Walker, 59 Ohio

App.2d 216, 394 N.E.2d 348 (8th Dist. 1978).

       {¶19} Appellant also contends in her brief that the trial court abused its discretion

in denying the motion because she alleged a meritorious defense in her motion to vacate.

Appellant argues she made several compromises during the negotiations in exchange for

appellee’s obligation to pay the arrearages, including agreeing to waive child support,

relinquishing her rights in the Millfield property, allowing appellee to claim the minor child
Fairfield County, Case No. 16-CA-17                                                     8


as a dependent every other year for tax purposes, and allowing appellee to retain the rent

from the marital property.

      {¶20} The denial of a hearing and the presentation of a meritorious defense go

hand in hand. Chase Home Finance, LLC v. Lindenmayer, 5th Dist. Licking No. 15-CA-

32, 016-Ohio-1202. As detailed above, the motion and supporting evidence did not

contain sufficient allegations of operative facts to support a meritorious defense to the

judgment. See Wells Fargo Bank v. Grutsch, 5th Dist. Delaware Nos. 14 CAE 1000067,

15 CAE 050041, 2015-Ohio-4721. Further, while the provisions appellant cites are

included in both the handwritten memorandum journal entry and the agreed journal

entry/decree of divorce, there is no indication in the record or in either document that

these provisions were included in exchange for appellee’s payment of child support

arrearages.
Fairfield County, Case No. 16-CA-17                                                      9


      {¶21} Based on the foregoing, we find the trial court did not abuse its discretion in

denying appellant’s motion to vacate and/or in failing to hold an evidentiary hearing.

Appellant makes no showing by way of affidavit that excusable neglect existed, or that

she has a meritorious defense to present if relief is granted. Appellant’s assignment of

error is overruled and the April 20, 2016 judgment entry of the Fairfield County Court of

Common Pleas, Domestic Relations Division, is affirmed.



By Gwin, P.J.,

Wise, J., and

Baldwin, J., concur
