[Cite as Mosier v. Mosier, 2013-Ohio-3024.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

DONNA E. MOSIER                                   JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Patricia A. Delaney, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 12CA101
MICHAEL L. MOSIER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Richland County Court of
                                              Common Pleas, Domestic Relations
                                              Division Case No. 01-D-624


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                        July 11, 2013


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


THOMAS L. COLE                                HOWARD C. WHITCOMB, III.
Weldon, Huston, & Keyser, L.L.P.              127 West Perry Street, Suite 105
76 N. Mulberry Street                         Port Clinton, OH 43452
Mansfield, OH 44902
Richland County, Case No. 12CA101                                                      2

Hoffman, P.J.


         {¶1}   Defendant-appellant Michael L. Mosier appeals the September 10, 2012

Judgment Entry entered by the Richland County Court of Common Pleas, Domestic

Relations Division, which overruled his objections to the magistrate’s June 20, 2012

decision, and approved and adopted the decision with the exception of the social

security offset as the order of the court. Plaintiff-appellee is Donna E. Mosier, nka

Eaton.

                            STATEMENT OF THE CASE AND FACTS

         {¶2}   The parties were divorced via Judgment Entry/Decree of Divorce filed

March 6, 2003. As part of the divorce, the trial court awarded Appellee:

                Fifty percent (50%) of the coverture portion of [Appellant’s] Air

         Force and Ohio National Guard Retirement Benefits vested as of

         December 31, 2002. The appropriate Social Security offset to be

         calculated by Pension Evaluators and the Qualified Domestic Relations

         Order to effect said award to be prepared by Pension Evaluators with the

         cost to be equally divided between [Appellee and Appellant].           The

         Qualified Order to contain the appropriate survivorship benefits as to that

         portion awarded to the alternate Payee.

         {¶3}   A Military Qualifying Court Order (“MQCO”) signed by the parties, their

counsel and the presiding judge was filed on April 17, 2006. The MQCO indicated

Appellant was receiving a military retirement benefit from the United States Air Force

and Appellee had an interest therein. Appellee was entitled to receive $924.71/month

as her portion of the retirement benefits.
Richland County, Case No. 12CA101                                                       3


       {¶4}   Appellant began receiving disability benefits on November 1, 2007. As a

result, Appellee’s portion of the retirement benefits was reduced to $740.29/month.

Appellee filed a motion in contempt based upon Appellant’s failure to comply with the

MQCO on November 27, 2007. Specifically, Appellee asserted Appellant should be

held in contempt for failing to directly pay her $184.42/month to neutralize the effect of

Appellant’s receipt of disability benefits.    Following a hearing, the magistrate found

Appellant in contempt. The magistrate imposed a jail sentence of ten-days but provided

Appellant with the opportunity to purge the contempt by satisfying three conditions.

Appellant filed objections to the magistrate’s decision, which the trial court overruled.

The trial court approved and adopted the magistrate’s decision as order of the court.

       {¶5}   On July 10, 2008, Appellee filed a motion asking the trial court to impose

the contempt order.     Following a hearing, the magistrate found Appellant had not

demonstrated any defense for his failure to satisfy the second and third purge

conditions.   The magistrate imposed the ten-day jail sentence upon Appellant.

Appellant filed objections to the magistrate’s decision, which the trial court overruled.

Appellant filed an appeal to this Court, which affirmed the trial court’s decision. Mosier

v. Mosier, 5th Dist. No. 2008 CA 0103, 2009 -Ohio- 1195.

       {¶6}   On January 9, 2012, Appellant filed a motion for relief from judgment

pursuant to Civ. R. 60(B)(4) and (5).         The parties stipulated the motion would be

submitted on the briefs and no further evidence would be heard. Via Decision filed June

20, 2012, the magistrate denied Appellant’s motion for relief from judgment. Appellant

filed objections.   The trial court overruled Appellant’s objections and adopted the

magistrate’s decision with one exception:
Richland County, Case No. 12CA101                                                       4


              The Court does not adopt the Magistrate’s finding that the military

     order failed to include an appropriate social security offset as required by

     the Decree.       There was insufficient, if any, evidence submitted by

     [Appellant] to demonstrate that Pension Evaluators did not calculate the

     appropriate Social Security [sic] offset. There was also insufficient, if any,

     evidence submitted to demonstrate that the appropriate social security

     offset was anything other than zero. September 10, 2012 Judgment Entry

     at 25.

     {¶7}     It is from this judgment entry Appellant appeals, assigning as error:

     {¶8}     “I. THE TRIAL COURT’S DENIAL OF DEFENDANT-APPELLANT’S

CIV.R. 60(B) MOTION WAS INCONSISTENT AND CONTRARY TO CURRENT CASE

LAW AND IS UNSUPPORTED BY SUFFICIENT CREDIBLE FACTS AND/OR THE

MANIFEST WEIGHT OF THE EVIDENCE PRESENTED TO THE TRIAL COURT FOR

REVIEW.”

                                                I

     {¶9}     Civ. R. 60(B) provides:

              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; (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
Richland County, Case No. 12CA101                                                         5


       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. 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. A motion under this subdivision (B) does not affect the finality of

       a judgment or suspend its operation.

       {¶10} A movant for relief from judgment under Civ. R. 60(B) must demonstrate:

(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)-(5); and (3)

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

Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the

syllabus. The movant must submit factual material with his motion which demonstrates

grounds which, if true, would constitute a defense to the action. Matson v. Marks, 32

Ohio App.2d 319, 327, 291 N.E.2d 491 (1972). The motion must be supported with

evidence of at least affidavit quality. East Ohio Gas v. Walker, 59 Ohio App.2d 216, 220,

394 N.E.2d 348 (1978). Where the motion and supporting evidence contain sufficient

allegations of operative facts which would support a meritorious defense to the

judgment, the court must assign the matter for evidentiary hearing. BancOhio Natl. Bank

v. Schiesswohl, 51 Ohio App.3d 130, 554 N.E.2d 1362 (1988), paragraph one of the

syllabus, 51 Ohio App.3d 130, 554 N.E.2d 1362. Bare assertions of fact do not entitle
Richland County, Case No. 12CA101                                                         6

the movant to relief or to a hearing on the motion to set aside the judgment. Mount

Vernon Farmer's Exchange v. McKee, 5th Dist. App. No. 98-CA-27 (Citations omitted).

       {¶11} The question of whether a motion for relief from judgment should be

granted is entrusted to the sound discretion of the trial court and will not be disturbed on

appeal absent an abuse of discretion. Strack v. Pelton (1994), 70 Ohio St.3d 172

(1994).

       {¶12} Assuming, arguendo, Appellant is able to establish the first two prongs of

the GTE Automatic Elec. test, we, nonetheless, find the trial court did not abuse its

discretion in denying the motion as such was not made within a reasonable time.

Appellant filed his motion for relief from judgment almost six years after the filing of the

MQCO. Appellee filed her motion in contempt on November 27, 2007. At that point,

Appellant should have been aware of any alleged inconsistencies between the divorce

decree and the MQCO.

       {¶13} Appellant’s sole assignment of error is overruled.

       {¶14} The judgment of the Richland County Court of Common Pleas, Domestic

Relations Division, is affirmed.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur                            ___________________________________
                                              HON. WILLIAM B. HOFFMAN


                                              ___________________________________
                                              HON. PATRICIA A. DELANEY


                                              ___________________________________
                                              HON. CRAIG R. BALDWIN
Richland County, Case No. 12CA101                                                  7


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


DONNA E. MOSIER                           :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
MICHAEL L. MOSIER                         :
                                          :
       Defendant-Appellant                :         Case No. 12CA101


       For the reason stated in our accompanying Opinion, the judgment of the

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

Costs assessed to Appellant.




                                          ___________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          ___________________________________
                                          HON. PATRICIA A. DELANEY


                                          ___________________________________
                                          HON. CRAIG R. BALDWIN
