[Cite as Kutz v. Kutz, 2013-Ohio-532.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                         MADISON COUNTY




REBECCA J. KUTZ,                                :

        Plaintiff-Appellee,                     :      CASE NO. CA2012-08-017

                                                :              OPINION
    - vs -                                                      2/19/2013
                                                :

MARK A. KUTZ,                                   :

        Defendant-Appellant.                    :



             APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
                            Case No. DRA20090060



Lisa M. Christensen, David H. Jackman, 60 South Main Street, P.O. Box 29, London, Ohio
43140, for plaintiff-appellee

Ralph A. Kerns, Amanda L. Wilhelm, 6797 North High Street, Suite 325, Worthington, Ohio
43085, for defendant-appellant



        PIPER, J.

        {¶ 1} Defendant-appellant, Mark Kutz (Husband), appeals a decision of the Madison

County Court of Common Pleas, denying his request for relief from the trial court's judgment

entry and decree of divorce.

        {¶ 2} Husband married plaintiff-appellee, Rebecca Kutz (Wife), in 1990 and the

couple had three children born issue of the marriage. Wife filed a complaint for legal
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separation in April 2009, and Husband later filed a petition for divorce. The parties engaged

in discovery and attempted a settlement.        While Husband stipulated to Wife having

residential custody of the children, the parties were unsuccessful in settling all support and

division of property matters.    A hearing was scheduled for December 10, 2009, but

Husband's counsel withdrew his appearance, and the hearing date was continued until

January 14, 2010. Husband moved the court to continue the hearing once more, but such

request was denied and the hearing was held before a magistrate. The magistrate issued its

decision, and Husband, acting pro se, filed objections to the magistrate's decision. The trial

court overruled each objection in turn.

       {¶ 3} The trial court set another hearing because Husband filed bankruptcy, and

those proceedings were pending at the time of the first hearing. Husband moved for a

continuance of the second hearing, which was also denied. The magistrate then held a

second hearing. On the day before the magistrate issued its decision, Husband's counsel

withdrew. Husband filed a pro se motion for reconsideration of the magistrate's decision,

which the trial court overruled. Husband filed a direct appeal to this court, which was

dismissed because the trial court's decree had not yet been filed at the time Husband filed

his notice of appeal. Husband did not file a direct appeal with this court once the trial court

filed the divorce decree. Instead, Husband retained another attorney.

       {¶ 4} Husband, represented by counsel, filed a motion to set aside the decree of

divorce pursuant to Civ.R. 60(B). However, the trial court denied Husband's motion, and did

not hold a hearing before doing so. Husband now appeals the trial court's decision overruling

his Civ.R. 60(B) motion, raising the following assignment of error.

       {¶ 5} THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING

DEFENDANT'S 60(B) MOTION WITHOUT AN OPPORTUNITY FOR THE DEFENDANT TO

BE HEARD.
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       {¶ 6} Husband argues in his sole assignment of error that the trial court abused its

discretion by denying his Civ.R. 60(B) motion, and that it erred by not holding a hearing

before denying the motion.

       {¶ 7} According to Civ.R. 60(B),

                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 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.

       {¶ 8} The Ohio Supreme Court has established the following test to determine

whether a party can prevail on a motion to set aside a judgment 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 * * *." GTE

Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976) at paragraph two of

the syllabus.

       {¶ 9} A trial court is not required to conduct a hearing on a Civ.R. 60(B) motion

"unless [the] motion and accompanying materials contain operative facts to support relief."

Hover v. O'Hara, 12th Dist. No. CA2006-06-077, 2007-Ohio-3614, ¶ 30, citing Kay v.

Glassman, Inc., 76 Ohio St.3d 18 (1996). We review a trial court's decision granting or

denying a party's motion for relief from judgment for an abuse of discretion. Strack v. Pelton,


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70 Ohio St.3d 172, 174 (1994). An abuse of discretion implies that the trial court's decision

was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1993).

       {¶ 10} In his Civ.R. 60(B) motion, Husband argues that the divorce decree should be

set aside because (1) the guardian ad litem failed to meet her duties, (2) the trial court erred

in calculating and ordering spousal support, (3) the trial court erred in calculating

reimbursement for an Ohio Public Employees Retirement System account, (4) the trial court

erred in calculating child support, and (5) the trial court failed to account for Husband's

separate property.

       {¶ 11} Husband is essentially trying to mount a direct appeal by virtue of his Civ.R.

60(B) motion, a tactic which is improper. Husband's first attempt to file a direct appeal with

this court was dismissed as unripe because the final decree of divorce had not yet been filed

in the trial court. However, Husband took no steps to directly appeal the trial court's ruling

once the decree was filed. A Civ.R. 60(B) motion is not the correct avenue to challenge the

trial court's ruling when a party fails to properly perfect a direct appeal.

              Where the remedy of appeal is available to a party, and where
              the issues raised in a motion for relief from judgment are those
              which could properly have been raised on appeal, a motion for
              relief from judgment will be denied. * * * In short, Civ.R. 60(B)
              was intended to provide relief from a final judgment in specific,
              enumerated situations and cannot be used as a substitute for a
              direct, timely appeal.

Newell v. White, 4th Dist. No. 05CA27, 2006-Ohio-637, ¶ 14-15. The proper method for

challenging the trial court's decision was to directly and timely appeal the divorce decree, and

raise before this court those arguments Husband has raised within his Civ.R. 60(B) motion.

       {¶ 12} Even if the Civ.R. 60(B) motion had been the proper procedural course, the trial

court overruled Husband's motion, finding that Husband failed to assert any new facts and

that all issues raised in the Civ.R. 60(B) motion had been litigated through the hearings, post-
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hearing filings, and through the objections to the magistrate's decision. After reviewing the

record, we find that the trial court's decision was not an abuse of discretion.

       {¶ 13} The record indicates that the parties litigated the issues raised in Husband's

Civ.R. 60(B) motion. Moreover, Husband's motion did not demonstrate mistake, newly

discovered evidence, or Wife's misconduct or fraud as is required within Civ.R. 60(B) (1)-(3).

Instead, Husband merely made claims that the trial court erred in adopting the magistrate's

determination of several financial issues, as well as in considering the GAL's report.

       {¶ 14} However, the record contains evidence that the financial issues Husband now

claims as error were litigated during the divorce proceedings, and all issues regarding

support and property distribution were included in the trial court's order. Also, the GAL filed

multiple reports, and the record indicates that Husband had knowledge of the reports, as he

raised specific objections regarding the GAL's findings and recommendations. Nothing within

Husband's Civ.R. 60(B) motion indicated that he had a meritorious defense or that he was

entitled to relief because of mistake, new evidence, or fraud.

       {¶ 15} Husband also suggests that the decree should be set aside and a new hearing

held because his counsel withdrew on one occasion before a hearing and again before the

magistrate's second decision was released. However, the trial court specifically found that

Husband was not able to demonstrate that his counsel withdrawing was proper grounds

pursuant to Civ.R. 60(B) to set aside the judgment and order a new hearing.

       {¶ 16} Instead, there is no indication that Husband suffered any prejudice from his

counsel withdrawing. The first hearing was continued so that Husband could obtain new

counsel. The second time counsel withdrew was before the magistrate's decision was

released, but Husband had time to secure new counsel and still timely file objections and

could have done so. We would also note that on each occasion Husband's counsel

withdrew, it was because of Husband's actions (or inactions) and his failure to cooperate with
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counsel. Whatever the reason, not having counsel on those two occasions was not proper

grounds for setting aside the decree and granting Husband's Civ.R. 60(B) motion.

       {¶ 17} For these same reasons, the trial court was not required to hold a hearing

before denying Husband's Civ.R. 60(B) motion, as the motion and accompanying materials

did not contain operative facts to support the relief that Husband sought. After reviewing the

record, the trial court did not abuse its discretion in denying Husband's Civ.R. 60(B) motion,

and Husband's assignment of error is overruled.

       {¶ 18} Judgment affirmed.


       HENDRICKSON, P.J., and M. POWELL, J., concur.




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