[Cite as Mayer v. Mayer, 2017-Ohio-1450.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104748


                                 MICHAEL J. MAYER

                                                   PLAINTIFF-APPELLEE

                                             vs.


                                   JANICE A. MAYER

                                                   DEFENDANT-APPELLANT

                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                 Domestic Relations Division
                                   Case No. DR-14-353473

        BEFORE: Jones, J., Blackmon, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: April 20, 2017
ATTORNEYS FOR APPELLANT

Brittany A. Graham
Adam J. Thurman
Schoonover, Rosenthal, Thurman & Daray
North Point Tower, Suite 1720
1001 Lakeside Avenue
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

P. Lynn Seifert
5005 Rockside Road, Suite 600
Independence, Ohio 44131

Lynn B. Schwartz
Lynn B. Schwartz Attorney at Law, L.L.C.
31100 Pinetree Road, Suite 225
Cleveland, Ohio 44124
LARRY A. JONES, SR., J.:

       {¶1} In this appeal, defendant-appellant Janice Mayer challenges the trial court’s

denial of her Civ.R. 60(B) motion for relief from judgment without a hearing. For the

reasons that follow, we reverse and remand.

       {¶2} This is a divorce proceeding, and the final divorce decree of Janice and

plaintiff-appellee Michael Mayer was entered on April 16, 2015.       Thereafter, the parties

engaged in post-decree proceedings, which included litigation relative to the sale of the

marital residence and division of financial assets (i.e., qualified domestic relations orders

(“QDRO’s”) relating to retirement and pension plans and savings accounts).

       {¶3} On April 14, 2016, Janice filed a Civ.R. 60(B) motion for relief from the April

16, 2015 divorce decree; Michael opposed her motion.        The trial court denied Janice’s

motion without a hearing, finding that, although it was filed within one year from the date

of the final divorce decree, it was nonetheless untimely.         Janice filed a motion for

reconsideration, which was also denied.       In this appeal, Janice contends that the trial

court erred by (1) finding her motion untimely and (2) denying it without a hearing.

Requirements for a Civ.R. 60(B) Motion

       {¶4} Civ.R. 60(B) provides in pertinent part as follows:

       On motion and upon such terms as are just, the court may relieve a party * *
       * from a final judgment, order or proceeding for 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
       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.

       {¶5}   To prevail on a Civ.R. 60(B) motion, 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 judgment, order, or proceeding was

entered or taken.    GTE Automatic Elec. v. ARC Industries, 47 Ohio St.2d 146, 351

N.E.2d 113 (1976), paragraph two of the syllabus.

       {¶6} Although Civ.R. 60(B) motions made under subsections (1), (2), or (3) must

be filed within one year of the judgment, order, or proceeding the movant is seeking relief

from, they also must be filed within a reasonable time, and can be untimely even if they

were filed within one year of the judgment, order, or proceeding. McBroom v. McBroom,

6th Dist. Lucas No. L-03-1027, 2003-Ohio-5198, ¶ 33. Further, although the one-year

limitation does not apply to Civ.R. 60(B) motions made under subsection (5), motions

made under that subsection nonetheless must be made within a reasonable time. K.H. v.

A.S., 6th Dist. Lucas No. L-10-1071, 2011-Ohio-547, ¶ 52. The movant has the burden

of presenting “‘allegations of operative facts to demonstrate that he [or she] is filing his [or

her] motion within a reasonable period of time.’” McBroom at id., quoting Adomeit v.

Baltimore, 39 Ohio App.2d 97, 103, 316 N.E.2d 469 (8th Dist.1974). Determining what
is a   “reasonable time” for filing a Civ.R. 60(B) motion depends on the facts of the case.

McBroom at ¶ 34.

       {¶7} We review a trial court’s ruling on a Civ.R. 60(B) motion for relief from

judgment for an abuse of discretion. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17,

20, 520 N.E.2d 564 (1988). An abuse of discretion “‘implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.’” Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144

(1980).

Janice’s Civ.R. 60(B) Motion

       {¶8} Janice sought relief from the divorce decree under subsections (2), (3) and (5)

of Civ.R. 60(B). In her motion, Janice contended that two contentious issues during the

parties’ divorce related to their retirement assets and whether Michael had additional

income from sales of sports and other memorabilia on eBay and at auction houses.      In an

affidavit in support of her motion, Janice averred that after the divorce she learned that

Michael “may have additional retirement assets with University Hospitals Pension

Services,” because Michael “is, or was, a participant in the [plan].”     She averred that

Michael never disclosed the plan during either the pre- or post-decree proceedings.

       {¶9} Janice further averred that she had attempted to discover information about

Michael’s income and, in particular, any income he had received from eBay transactions.

She averred that it was “not until several months after the divorce that the PayPal records,

which would have been readily available to [Michael], were finally received by [her] and
that these records reflect receipts from Ebay sales in the amount of approximately

[$80,000], which were not disclosed at the time of the parties’ divorce.”

       {¶10} Janice submitted a copy of an envelope from University Hospitals Pension

Services, addressed to Michael at the marital residence, with an April 2015 date stamp in

support of her motion.1      Janice contended that during the course of the post-decree

litigation, her counsel questioned Michael’s counsel about the envelope, which she

maintained was unopened, but never received a response.

       {¶11} Further, in her motion for reconsideration, Janice contended that since she

became aware of the possibility of the additional pension funds, she made “strenuous

efforts to resolve the matter outside of the Court,” and that was the reason she waited to

file her Civ.R. 60(B) motion. Janice contended that denying the motion as untimely was

“punishing” her for attempting to settle the matter without court intervention.

Analysis

       {¶12} Upon review, based on the facts of this case, the trial court abused its

discretion by denying Janice’s Civ.R. 60(B) motion without holding a hearing. The

record demonstrates that after the April 16, 2015 divorce decree was entered, this matter

continued to be litigated, in particular as to the parties’ assets and division of same. At

oral argument, counsel for both Michael and Janice informed this court that issues relative

to the parties’ assets are still being resolved.    On this record, there are allegations of


       1
        The record demonstrates that in April 2015 Janice was living in the marital home, and
Michael was not. Further, it appears that the specific date stamp on the envelope was April 14,
2015.
operative facts that would, at least, entitle Janice to a hearing.

       {¶13} In light of the above, Janice’s two assignments of error are well taken.

       {¶14} Judgment reversed; case remanded for a hearing on Janice’s Civ.R. 60(B)

motion.

       It is ordered that appellant recover of appellee 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 Cuyahoga

County Court of Common Pleas 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.




LARRY A. JONES, SR., JUDGE

PATRICIA ANN BLACKMON, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
