[Cite as Accountius v. Accountius, 2012-Ohio-711.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



VERONICA A. ACCOUNTIUS                                  JUDGES:
                                                        Hon. W. Scott Gwin, P. J.
        Petitioner-Appellee                             Hon. John W. Wise, J.
                                                        Hon. Patricia A. Delaney, J.
-vs-
                                                        Case No. 11 CA 62
BARRY A. ACCOUNTIUS

        Petitioner-Appellant                            OPINION




CHARACTER OF PROCEEDING:                             Civil Appeal from the Court of Common
                                                     Pleas, Domestic Relations Division, Case
                                                     No. 2010 DR 0683


JUDGMENT:                                            Affirmed



DATE OF JUDGMENT ENTRY:                              February 13, 2012



APPEARANCES:

For Petitioner-Appellee                              For Petitioner-Appellant

JACQUELINE L. KEMP                                   DEBORAH L. KENNEY
KEMP, SCHAEFFER & ROWE                               DEBORAH L. KENNEY LPA
88 West Mound Street                                 One South Park Place
Columbus, Ohio 43215                                 Newark, Ohio 43055
Licking County, Case No. 11 CA 62                                                         2

Wise, J.

       {¶1}   Appellant Barry A. Accountius appeals from the denial of his request for

relief from judgment subsequent to a dissolution of marriage in the Licking County Court

of Common Pleas. Appellee Veronica A. Accountius is appellant's former spouse. The

relevant facts leading to this appeal are as follows.

       {¶2}   Appellant and appellee were married in March 1987. Three children, S.A.,

E.A., and O.A., were born of the marriage, one of whom was emancipated shortly after

the commencement of this appeal. On April 30, 2010, appellant and appellee filed a

petition for dissolution of marriage. After the requisite appearances and hearing, the trial

court granted the dissolution on June 3, 2010.

       {¶3}   The decree of dissolution provided that appellee is the residential and

custodial parent of S.A. and E.A, while appellant is the residential and custodial parent

of O.A.

       {¶4}   The decree further provided that appellant would pay appellee spousal

support in the amount of $2,462.00 per month, to terminate upon appellee’s remarriage

or death. The decree did not provide for spousal support to terminate upon appellee’s

cohabitation with an unrelated male. The decree also expressly stated that the court did

not retain jurisdiction to modify spousal support.

       {¶5}   In respect to child support, the court ordered appellant to pay child support

of $440.69 per month, plus processing charge, employing a split custody worksheet

showing appellee as custodian of two children and appellant as custodian of one child.

On the worksheet, appellant's income was calculated at $63,000.00; appellee's income

was calculated at $42,250.00.
Licking County, Case No. 11 CA 62                                                        3


       {¶6}   Appellee also received the house, her retirement monies, and certain

financial accounts as assets.

       {¶7}   On March 1, 2011, approximately nine months after the dissolution

decree, appellant filed a motion for relief from judgment, citing Civ.R. 60(B)(1), (4), and

(5). He therein sought relief from spousal support, child support, and property division.

Appellant also filed therein a request for a modification of child support, based upon the

pending emancipation of the parties’ oldest child.

       {¶8}   Appellee filed a memorandum in opposition to appellant’s motion for relief

from judgment on March 14, 2011.

       {¶9}   On May 12, 2011, the trial court overruled the motion for relief from

judgment.1

      {¶10} On June 9, 2011, appellant filed a notice of appeal. He herein raises the

following five Assignments of Error:

       {¶11} “I. THE TRIAL COURT ERRED IN FAILING TO GRANT RELIEF FROM

JUDGMENT IN THAT THE CHILD SUPPORT WORKSHEET FILED IN THE PARTIES’

DISSOLUTION CONTAINED PLAIN ERROR.

       {¶12} “II. THE TRIAL COURT ERRED IN FAILING TO GRANT RELIEF FROM

JUDGMENT IN THAT THE SPOUSAL SUPPORT ORDER WAS UNCONSCIONABLE.

       {¶13} “III. THE TRIAL COURT ERRED IN FAILING TO GRANT RELIEF FROM

JUDGMENT IN THAT THE APPELLEE RECEIVED AN INEQUITABLE PROPERTY

SETTLEMENT.



1
   The request for post-decree modification of child support was set for further hearing,
and was later ruled upon by the trial court. That part of the decision is not an issue in
this appeal.
Licking County, Case No. 11 CA 62                                                         4


       {¶14} “IV. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED

REVERSIBLE ERROR IN CONTINUING EXISTING ORDERS FOR PAYMENT OF

CHILD SUPPORT, SPOUSAL SUPPORT AND PROPERTY DIVISION.

       {¶15} “V.    THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN

EVIDENTIARTY (SIC) HEARING PRIOR TO OVERRULING APPELLANT’S MOTION

FOR RELIEF FROM JUDGMENT.”

                                             I.

       {¶16} In his First Assignment of Error, appellant argues the trial court erred in

denying relief from judgment, particularly as to the order of child support in the parties’

dissolution decree. We disagree.

                                   Standard of Review

       {¶17} Civ.R. 60(B) reads as follows: “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:

       {¶18} “(1) mistake, inadvertence, surprise or excusable neglect;

       {¶19} “(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);

       {¶20} “(3) fraud (whether heretofore denominated intrinsic or extrinsic),

misrepresentation or other misconduct of an adverse party;

       {¶21} “(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
Licking County, Case No. 11 CA 62                                                       5


      {¶22} “(5) any other reason justifying relief from the judgment. The motion shall

be made within a reasonable time, and for reasons (1), (2) and (3) not more than one

year after the judgment, order or proceeding was entered or taken. * * *.”

      {¶23} In order to prevail on a motion brought pursuant to Civ.R. 60(B), “ * * * the

movant must demonstrate that (1) the party has a meritorious defense or claim to

present if relief is granted; (2) the party is entitled to relief under one of the grounds

stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable

time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one

year after the judgment, order or proceedings was entered or taken.” Argo Plastic

Products Co. v. Cleveland (1984), 15 Ohio St.3d 389, 391, 474 N.E.2d 328, citing GTE

Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113,

paragraph two of the syllabus. If any prong of this requirement is not satisfied, relief

shall be denied. Argo at 391, 474 N.E.2d 328.

      {¶24} Civ.R. 60(B) represents an attempt to “strike a proper balance between

the conflicting principles that litigation must be brought to an end and justice should be

done.” Colley v. Bazell (1980), 64 Ohio St.2d 243, 248, 416 N.E.2d 605 (citation

omitted). A motion for relief from judgment under Civ.R. 60(B) is addressed to the sound

discretion of the trial court and a ruling will not be disturbed absent an abuse of

discretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77, 514 N.E.2d 1122. An abuse of

discretion connotes more than an error of law or judgment, it implies the court's attitude

is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140.
Licking County, Case No. 11 CA 62                                                         6

                                         Analysis

       {¶25} In appellant's motion for relief from judgment, he maintained that the child

support guideline worksheet did not include a deduction from appellant's income for the

annual spousal support ordered paid to appellee in the amount of $29,544.00 per year

(based on $2,462.00 per month), and that the worksheet did not include said sum of

$29,544.00 as income for appellee. See R.C. 3119.01(C)(7); R.C. 3119.022 worksheet,

line 10.2

       {¶26} In the case sub judice, the trial court’s judgment entry denying appellant’s

60(B) motion noted that appellant had signed the separation agreement at the time of

the dissolution and that he had told the court that he read, understood, and agreed to it.

The record before us indicates that appellant also knowingly proceeded on the

dissolution without his own counsel. Appellant directs us to our decision in Collins v.

Collins, Licking App.No. 2008-CA-00028, 2008-Ohio-4993, in which we recognized that

a trial court must deduct spousal support from the income of the obligor and include it

as income on the obligee's side of the worksheet. Id. at ¶10. However, Collins was a

direct appeal from a divorce, not an appeal from the denial of relief from judgment in a

dissolution (as here), and we thus find Collins to be procedurally distinguishable.

       {¶27} Upon review, we hold the trial court did not abuse its discretion or commit

reversible error in denying appellant's Civ.R. 60(B) motion regarding child support.

Appellant's First Assignment of Error is therefore overruled.




2
   Technically speaking, these portions of the Revised Code reference spousal support
actually “received” or “paid,” in the past tense. Obviously, at the time of the decree, the
payments were still prospective. However, neither party has discussed this issue in the
briefs, and we will not herein further consider it.
Licking County, Case No. 11 CA 62                                                      7


                                            II.

       {¶28} In his Second Assignment of Error, appellant argues the trial court erred in

denying relief from judgment, particularly as to the order of spousal support in the

parties’ dissolution decree. We disagree.

       {¶29} We have recognized that in domestic relations proceedings in Ohio, “ ***

parties are free to negotiate a contract which may favor one side or other. Such a

separation agreement is enforceable as long as it was not procured by fraud, duress,

overreaching, or undue influence. So long as the terms are not so one sided as to be

unconscionable, a court should enforce the parties' agreement.” Russell v. Russell,

Stark App.No. 98-CA-1027, 1999 WL 437003, citing MacNealy v. MacNealy (October

31, 1997), Clark App. No. 96CA125, 1997 WL 674622.

       {¶30} Appellant presently contends that the spousal support order is

unconscionable. See Appellant’s Brief at 10. The gist of this claim is that spousal

support cannot be modified should appellee cohabitate with another man in the future,

and that there is no reservation of jurisdiction to modify spousal support should the

parties’ financial circumstances change in the future. Id.

       {¶31} However, we are herein guided by the well-established rule of law that a

party may not use a Civ.R. 60(B) motion as a substitute for a timely appeal. See Doe v.

Trumbull Cty. Children Services Bd. (1986), 28 Ohio St.3d 128, 502 N.E.2d 605,

paragraph two of the syllabus. While claims of unconscionable terms such as those

raised by appellant are not necessarily always confined solely to a direct appeal from a

divorce or decree, under the circumstances of the case sub judice, we hold the trial
Licking County, Case No. 11 CA 62                                                        8


court did not abuse its discretion or commit reversible error in denying appellant's Civ.R.

60(B) motion regarding spousal support.

       {¶32} Appellant's Second Assignment of Error is therefore overruled.

                                            III.

       {¶33} In his Third Assignment of Error, appellant argues the trial court erred in

denying relief from judgment regarding the issue of the property division in the parties’

dissolution decree. We disagree.

       {¶34} Appellant contends that the parties' property division was inequitable

based upon appellant's agreement to give appellee approximately $40,000.00 from his

retirement account. Appellant essentially maintains that the retirement distribution was

not equitably offset by other property division provisions, noting appellee received the

marital residence, her retirement monies, and a certificate of deposit. Appellant further

alleges that there was a lack of mutuality and understanding as to property division in

the decree.

       {¶35} We again note that appellant is seeking to vacate terms of a dissolution

and corresponding property resolution to which he voluntarily agreed. This Court has

emphasized that “[n]either a change of heart nor poor legal advice is a ground to set

aside a settlement agreement.” Pastor v. Pastor, Fairfield App.No. 04 CA 67, 2005-

Ohio-6946, ¶ 18, citing Walther v. Walther (1995), 102 Ohio App.3d 378, 383, 657

N.E.2d 332. In the case sub judice, we find it would have been within the trial court’s

discretion to determine that appellant had agreed to the challenged property division

terms as part of his negotiation process in terminating the parties’ marriage.
Licking County, Case No. 11 CA 62                                                              9


          {¶36} We hold the trial court did not abuse its discretion or commit reversible

error in denying appellant's Civ.R. 60(B) motion regarding property division.

          {¶37} Appellant's Third Assignment of Error is therefore overruled.

                                                IV.

          {¶38} In his Fourth Assignment of Error, appellant contends the trial court

abused its discretion by “continuing existing orders” from the dissolution decree. We

disagree.

          {¶39} Appellant’s argument at this juncture essentially revisits the issues

previously raised in his brief, mostly on the basis that the trial court should have more

thoroughly reviewed the pleadings and orders in the dissolution case for any inequities

therein. See Appellant’s Brief at 16. However, a presumption of regularity attaches to all

trial court proceedings (see, e.g., Chari v. Vore (2001), 91 Ohio St.3d 323, 325, 744

N.E.2d 763) and we find appellant fails to overcome such presumption in the case sub

judice.

          {¶40} Accordingly, appellant's Fourth Assignment of Error is overruled.

                                                V.

          {¶41} In his Fifth Assignment of Error, appellant contends the trial court abused

its discretion by failing to conduct a hearing on his motion for relief from judgment. We

disagree.

          {¶42} Generally, “[i]t is an abuse of discretion for a trial court to overrule a Civ.R.

60(B) motion for relief from judgment without first holding an evidentiary hearing only if

the motion or supportive affidavits contain allegations of operative facts which would

warrant relief under Civ.R. 60(B).” In re Estate of Kirkland, Clark App.No. 2008–CA–57,
Licking County, Case No. 11 CA 62                                                    10

2009–Ohio–3765, ¶ 17, quoting Boster v. C & M Serv., Inc. (1994), 93 Ohio App.3d 523,

526, 639 N.E.2d 136 (emphasis in original).

      {¶43} In light of our previous analysis herein, we find no merit in appellant’s

claim that the lack of an evidentiary hearing on his 60(B) motion constituted reversible

error under the facts and circumstances of this case.

      {¶44} Appellant's Fifth Assignment of Error is therefore overruled.

      {¶45} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Domestic Relations Division, Licking County, Ohio, is hereby

affirmed.



By: Wise, J.

Gwin, P. J., and

Delaney, J., concur.



                                              ___________________________________


                                              ___________________________________


                                              ___________________________________

                                                               JUDGES
Licking County, Case No. 11 CA 62                                               11


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




VERONICA A. ACCOUNTIUS                   :
                                         :
       Petitioner-Appellee               :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
BARRY A. ACCOUNTIUS                      :
                                         :
       Petitioner-Appellant              :         Case No. 11 CA 62




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Domestic Relations Division, Licking County,

Ohio, is affirmed.

       Costs assessed to appellant.




                                         ___________________________________


                                         ___________________________________


                                         ___________________________________

                                                           JUDGES
