[Cite as Esplandiu v. Esplandiu, 2017-Ohio-5744.]


                  Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                         No. 104750



                                       JENNIFER ESPLANDIU

                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                     GELSOMINO ESPLANDIU

                                                          DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                   Domestic Relations Division
                                     Case No. DR-13-349143

        BEFORE: Stewart, J., Kilbane, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: July 6, 2017
ATTORNEYS FOR APPELLANT

Joseph G. Stafford
Nicole A. Cruz
Hannah R. Pasku
Stafford & Stafford Co., L.P.A.
55 Erieview Plaza, 5th Floor
Cleveland, OH 44114


ATTORNEY FOR APPELLEE

Mark A. Ziccarelli
Zicarelli & Martello
8754 Mentor Avenue
Mentor, OH 44060
MELODY J. STEWART, J.:

       {¶1} Defendant-appellant Gelsomino Esplandiu appeals the trial court’s denial of his

motion for relief from judgment of a divorce decree and allocation of marital property. Finding

no merit to his two assignments of error, we affirm the trial court’s decision.

       {¶2} During Gelsomino and plaintiff-appellee Jennifer Esplandiu’s marriage, they came

to own multiple businesses. Pursuant to their divorce action, they negotiated a separation

agreement that was incorporated into the court’s judgment entry. As relevant to the case, the

agreement provided that each person would keep two of the four businesses that the couple

owned together.

       {¶3} One day shy of one year after the final judgment entry of divorce, Gelsomino

disputed whether the marital property had been equitably distributed. Asserting that Jennifer

had made fraudulent misrepresentations during the settlement and divorce that caused an unfair

distribution of the property, Gelsomino moved the court to vacate the judgment pursuant to

Civ.R. 60(B) and to conduct a full evidentiary hearing.          Jennifer did not file a brief in

opposition. The court, although initially setting a date for a hearing on the motion, nevertheless

denied the motion before the hearing.

       {¶4} In order to succeed on a motion for relief from judgment under Civ.R. 60(B), the

moving party must demonstrate each of the following:

       (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 for relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after the
       judgment, order or proceeding was entered or taken.
GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976),

paragraph two of the syllabus. A trial court should overrule any Civ.R. 60(B) motion that fails

to establish all three of these requirements. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17,

20, 520 N.E.2d 564 (1988).

       {¶5} When reviewing a trial court’s denial of a motion for relief from judgment under

Civ.R. 60(B), we recognize a trial court is vested with discretion to grant the motion. Settonni v.

Settonni, 8th Dist. Cuyahoga No. 97784, 2012-Ohio-3084, ¶ 9, citing Rose Chevrolet at 20. We

will not disturb a trial court’s ruling absent an abuse of that discretion. Id. An abuse of

discretion exists when a decision is unreasonable, arbitrary, or unconscionable.         (Citations

omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶6} In his first assignment of error, Gelsomino complains that the trial court erroneously

denied his Civ.R. 60(B) motion as untimely.        He argues that he is entitled to relief from

judgment under three Civ.R. 60(B) subdivisions: (3) based on fraud, misrepresentation, or other

misconduct of the adverse party; (4) because it is no longer equitable that the judgment should

have prospective application; and (5) any other reason justifying relief from judgment. Those

subdivisions require that the motion be made within a reasonable time, although subdivision (3)

has as an additional requirement that the motion be made within one year. However, whether a

Civ.R. 60(B) motion is timely depends on case-specific facts and circumstances. Fed. Natl.

Mtge. Assoc. v. Goldstein, 8th Dist. Cuyahoga No. 87743, 2006-Ohio-6769, ¶ 13.               What

constitutes a “reasonable time” is a determination within the sound discretion of the trial court.

Ohio Carpenters’ Fringe Benefit Fund v. Krulak, 8th Dist. Cuyahoga No. 88872,

2008-Ohio-220, ¶ 27, quoting In re Dissolution of Marriage of Watson, 13 Ohio App.3d 344,

469 N.E.2d 876 (9th Dist.1983).
       {¶7} Filing a Civ.R. 60(B) motion within one year of the judgment entry does not

guarantee its timeliness. This court has repeatedly held as much where the movant failed to

explain the reason for delay. See, e.g., Kaczur v. Decara, 8th Dist. Cuyahoga No. 67546, 1995

Ohio App. LEXIS 3038, 11 (July 20, 1995) (motion untimely where movant failed to explain

reason for nine-month delay); Natl. City Bank v. Hostelley, 8th Dist. Cuyahoga No. 58554, 1991

Ohio App. LEXIS 3292, 5 (July 3, 1991) (motion filed less than ten weeks after learning of

judgment, “devoid” of explanation for delay, was untimely); Mt. Olive Baptist Church v. Pipkins

Paints & Home Improvement Ctr., Inc., 64 Ohio App.2d 285, 289, 413 N.E.2d 850 (8th

Dist.1979) (motion filed more than four months after judgment entered was untimely absent

evidence explaining delay). The burden is on the movant to justify the delay. Brackins v.

Brackins, 8th Dist. Cuyahoga No. 75025, 1999 Ohio App. LEXIS 6061, 8 (Dec. 16, 1999) (bare

assertion that appellant was “diligent,” in and of itself, failed to demonstrate delay was

reasonable).

       {¶8} Although Gelsomino asserted that his Civ.R. 60(B) motion was “timely,” because it

was filed just shy of one year, the motion provided no basis for the trial court to find as much.

The court denied the motion as untimely, stating “[n]owhere in [Gelsomino’s] Motion or

Affidavit does he explain when he received the information that he is using as a basis for his

Motion to Vacate * * * [and] he never states what information he discovered to support this

allegation.”

       {¶9} While a moving party is not required to submit evidentiary material in support of a

Civ.R. 60(B) motion, he must include more than “bare allegations” of entitlement to relief. Kay

v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996).            This court has

reiterated that the moving party bears the burden of proving timeliness and “[t]o sustain this
burden, ‘good legal practice dictates that the movant * * * present allegations of operative facts’”

demonstrating the motion is timely. Brackins at 8-9, quoting Fouts v. Weiss-Carson, 77 Ohio

App.3d 563, 566, 602 N.E.2d 1231 (11th Dist.1991).

       {¶10} Gelsomino asserted that his motion was timely, because he had “only recently

discovered” the alleged fraud and misrepresentation, and that he had done so “shortly” before he

filed his motion. These assertions were apparently too vague for the court to find that the

motion was timely.

       {¶11} Additionally, Gelsomino provided the court no operative facts to support his claim

that his motion was timely. In his affidavit, Gelsomino gave as a basis for his claims that at the

time of the settlement agreement Jennifer misrepresented that the two businesses she was to

retain were “not performing well.” He averred if her businesses were actually performing as

alleged, that she would not have been able to afford subsequent improvements she made to her

home. He also averred that “documentation and technology,” and specifically the point of sale

system used at one of the businesses demonstrated that Jennifer concealed income. Further, he

averred that the two businesses he retained have performed meagerly in comparison to hers and

that this demonstrated the purported fraud and misrepresentation. At best, these statements

establish that Jennifer made improvements to her home and that her businesses are

outperforming his. Gelsomino’s motion and affidavit do not contain any information that would

have allowed the court to find that his motion was timely made. We cannot say, therefore, that

the court abused its discretion in denying his motion. The first assignment of error is overruled.

       {¶12} In Gelsomino’s second assigned error, he complains that the trial court abused its

discretion when it set a date for an evidentiary hearing, but then denied his motion before the

hearing could take place.
       {¶13} A party moving for relief from judgment under Civ.R. 60(B) is not automatically

entitled to an evidentiary hearing on that motion. PNC Bank, N.A. v. DePalma, 8th Dist.

Cuyahoga No. 97566, 2012-Ohio-2774, ¶ 12, citing Gaines & Stern Co., L.P.A. v. Schwarzwald,

Robiner, Wolf & Rock, Co., L.P.A., 70 Ohio App.3d 643, 591 N.E.2d 866 (8th Dist.1990). The

moving party bears the burden of proving entitlement to relief or a hearing on the motion. ABL

Wholesale Distribs. v. Clark Gas, 8th Dist. Cuyahoga No. 100256, 2014-Ohio-2268, ¶ 13, citing

Adomeit v. Baltimore, 39 Ohio App.2d 97, 105, 316 N.E.2d 469 (8th Dist.1974). A party shows

entitlement to a hearing under Civ.R. 60(B) with allegations of operative facts that warrant relief

under the rule. Settonni, 8th Dist. Cuyahoga No. 97784, 2012-Ohio-3084, at ¶ 39, citing Kay, 76

Ohio St.3d 18, 1996-Ohio-430, 665 N.E.2d 1102. Specifically, and as discussed above, the

party’s factual materials must, on the face, demonstrate timeliness, a reason why the motion

should be grated, and a meritorious defense. Danforth v. Danforth, 8th Dist. Cuyahoga No.

86693, 2006-Ohio-2890, ¶ 14, citing Kay, id. If the party fails to demonstrate any one of those

elements the trial court need not hold an evidentiary hearing. Adomeit, id. “If the material

submitted by the movant in support of its motion contains no operative facts or meager and

limited facts and conclusions of law, it will not be an abuse of discretion for the trial court to

refuse to grant a hearing and overrule the motion.” Id.
       {¶14} As discussed in the previous assignment of error, the trial court found that

Gelsomino was not entitled to relief under Civ.R. 60(B) because his motion was untimely. The

court subsequently found that his motion did not contain “sufficient allegations of operative facts

to warrant a hearing * * *.”

       {¶15} After a review of the record, we cannot find that the court abused its discretion by

denying Gelsomino’s motion without conducting a hearing. His second assignment of error is

overruled.

       {¶16} Judgment affirmed.

       It is ordered that appellee recover of appellant 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 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.



______________________________________________
MELODY J. STEWART, JUDGE

MARY EILEEN KILBANE, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
