[Cite as Hirshman v. Dininny, 2011-Ohio-2149.]


         Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 95325




                            JUDITH L. HIRSHMAN
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                DAVID R. DININNY
                                                       DEFENDANT-APPELLANT




                                         JUDGMENT:
                                          AFFIRMED


                                 Civil Appeal from the
                        Cuyahoga County Court of Common Pleas
                            Division of Domestic Relations
                                  Case No. D-279106

        BEFORE:          Rocco, J., Boyle, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED:                        May 5, 2011
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ATTORNEYS FOR APPELLANT

Vincent A. Stafford
Anne C. Fantelli
Gregory J. Moore
Stafford & Stafford, Co., L.P.A.
The Stafford Building
2105 Ontario Street
Cleveland, Ohio 44115


ATTORNEY FOR APPELLEE

Gary S. Okin
Dworken & Bernstein Co., L.P.A.
60 South Park Place
Painesville, Ohio 44077




KENNETH A. ROCCO, J.:

      {¶ 1} Appellant David Dininny appeals from the order of the Cuyahoga

County Court of Common Pleas, Domestic Relations Division, that denied his

Civ.R. 60(B) “motion to vacate/motion for relief from [the] judgment” of

dissolution of his marriage, which the court entered in 2001.

      {¶ 2} Dininny presents four assignments of error.         He argues he

demonstrated grounds for relief under either Civ.R. 60(B)(4) or (5), the trial
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court should have conducted a hearing on his motion, and the trial court’s

decision is not supported by the manifest weight of the evidence.

      {¶ 3} Upon a review of the record Dininny furnished, this court finds no

error. Consequently, the trial court’s decision is affirmed.

      {¶ 4} This action was commenced by Dininny and his former wife,

appellee Judith Hirshman, in March 2001, when they petitioned the trial

court for a decree of dissolution of their eleven-and-a-half year marriage.

Dininny and Hirshman informed the court they had “agreed to and executed

a Separation Agreement and Plan for Shared Parenting” of their only child;

they attached documents to their petition for the court’s convenience.

      {¶ 5} Part III of the “Shared Parenting Plan” the parties submitted

stated in pertinent part as follows:

      {¶ 6} “(A) SUPPORT OF MINOR CHILD

      {¶ 7} “ * * * Father shall pay to the Mother as and for child support the

total sum of * * * $2071.34) per month, for the minor child * * *.

      {¶ 8} “Such child support obligation shall continue until the child

reaches the age of majority * * * .

      {¶ 9} “(E) COLLEGE EXPENSES

      {¶ 10} “The father shall provide the full costs associated with the child

attending and retaining a degree at a college or university of the child’s
                                      4

choice, regardless of whether the particular institution is in-state or

out-of-state, and/or a public or private institution.   Associated costs, [sic]

includes but is not limited to tuition, room and board, books, activity fees and

transportation. * * * ”

      {¶ 11} On April 19, 2001, following a hearing, the trial court entered a

decree of dissolution.     The parties’ separation and shared parenting

agreements were attached to the decree and incorporated by reference, since

“the parties acknowledged they were still in agreement as to the terms

thereof * * * .”

      {¶ 12} The record reflects that on May 18, 2010, Dininny filed several

motions in an effort to alter his obligations with respect to child support. He

entitled one of those motions as follows: “Motion to vacate/Motion for relief

from judgment,” with “request for oral hearing motion for attorney fees.”

           {¶ 13} The record on appeal, however, does not include the foregoing

                                                                        motion.

      {¶ 14} The record includes only Dininny’s “motion to modify child

support and other orders pertaining to expenses for minor child [and] motion

for attorney fees.”
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      {¶ 15} According to the record, Dininny sent a copy of his motion to

Hirshman by means of a “special process server.” On May 25, 2010, the trial

court issued a journal entry, stating the following:

      {¶ 16} “Upon review of Petitioner-2 David Dininny’s motion for relief

from judgment pursuant to Civil Rule 60 #299980, the Court finds said

motion not to be well-taken.           The Court finds Petitioner-2 has not

established a prima facie case for relief because there is no explanation for

the nine-year delay in bringing this [motion].       Accordingly, he had not met

the third prong of the test set forth in GTE Automatic Electric v. ARC

Industries (1976) 47 Ohio St.2d 46, 351 N.E.2d 113, i.e., the timeliness factor.

 A motion for relief from judgment must be brought within a reasonable

period of time. See Rodgers v. Rodgers (June 25, 2009) Cuyahoga App. No.

91877, 2009-Ohio-3059 where the appellate court upheld a trial court’s

dismissal of a motion for relief from judgment because movant had not met

his duty to adequately address the timeliness of the motion. See also Francis

v. Francis (Feb. 25, 2010) Cuyahoga App. No. 93228, 2010-Ohio-676.

      {¶ 17} “ * * *

      {¶ 18} “IT IS FURTHER ORDERED that Motion for relief from

judgment #299980 is dismissed without prejudice. * * * ”1


      1Despite   the trial court’s language, there is no provision in the Ohio Civil
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      {¶ 19} Dininny filed a timely notice of appeal from the foregoing order.

He presents four assignments of error.

      {¶ 20} “I.     The trial court erred and abused its discretion by

denying [Appellant’s] motions [sic] pursuant to Civil Rule 60(B)(4).

      {¶ 21} “II.    The trial court erred and abused its discretion by

denying [Appellant’s] motions [sic] pursuant to Civil Rule 60(B)(5).

      {¶ 22} “III.    The trial court erred and abused its discretion by

ruling on [Appellant’s] motions [sic] without holding an evidentiary

hearing.

      {¶ 23} “IV.     The trial court erred and abused its discretion by

denying [Appellant’s] motions [sic] as its decision was against the

manifest weight of the evidence.”

      {¶ 24} Dininny argues that the trial court should have granted him

relief from the dissolution order because it was “procured through coercive

and egregious tactics,” had a “grossly excessive and disproportionate effect”

on him, and his affidavit established the necessary requirements for a

successful Civ.R. 60(B) motion under either subsection (4) or (5).2 Dininny



Rules of Procedure for a “dismissal” of a Civ.R. 60(B) motion “without prejudice.”
See, e.g., El Oraby v. Khamees, Franklin App. No. 08AP-359, 2008-Ohio-5437.
      2Civ.R. 60(B) permits a trial court to grant a party relief from a final
judgment under the following pertinent circumstances:
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further argues that, at the least, the trial court should have conducted a

hearing on his motion. This court cannot agree.

      {¶ 25} In order to prevail on a motion for relief from judgment brought

pursuant to Civ.R. 60(B), the movant must demonstrate: 1) a meritorious

claim or defense; 2) entitlement to relief under one of the grounds stated in

Civ.R. 60(B)(1) through (5); and 3) timeliness of the motion. GTE Automatic

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

paragraph two of the syllabus; Buckeye Fed. Sav. & Loan Assn. v. Gurlinger

(1991), 62 Ohio St.3d 312, 314, 581 N.E.2d 1352. These requirements are

independent and in the conjunctive; therefore, a failure to establish any one

of these requirements forecloses relief. Strack v. Pelton, 70 Ohio St.3d 172,

174, 1994-Ohio-107, 637 N.E.2d 914.

      {¶ 26} The trial court has discretion to decide whether to grant relief

from judgment; consequently, its determination will be reversed only upon a

showing that it abused its discretion. Rose Chevrolet, Inc. v. Adams (1988),


       “ (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.”
       Pursuant to the rule, a motion based upon these two reasons must be made
“within a reasonable time.”
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36 Ohio St.3d 17, 20-21, 520 N.E.2d 564; Adomeit v. Baltimore (1974), 39 Ohio

St.2d 97, 316 N.E.2d 469. Similarly, the trial court has discretion whether to

hold a hearing before ruling on the motion. Tokar v. Tokar, Cuyahoga App.

No. 93506, 2010-Ohio-524. Where grounds for relief from judgment do not

appear on the face of the record, a court may deny the motion without a

hearing.   Id., citing   Matson v. Marks (1972), 32 Ohio App.2d 319, 291

N.E.2d 491, paragraph five of the syllabus; Doddridge v. Fitzpatrick (1978),

53 Ohio St.2d 9, 371 N.E.2d 214, syllabus.

      {¶ 27} Initially, this court once again notes that the record on appeal

does not contain Dininny’s “Motion to vacate/motion for relief from judgment.”

 It is axiomatic that the appellant has the duty of providing the reviewing

court with a record of any matters necessary to support the appellant’s

assignments of error.    Volodkevich v. Volodkevich (1989), 48 Ohio App.3d

313, 549 N.E.2d 1237.

      {¶ 28} When portions of the record necessary for resolution of assigned

errors are omitted, the reviewing court has nothing to pass upon and thus, as

to those assigned errors, the court has no choice but to presume the validity of

the lower court’s proceedings, and affirm its decision. Knapp v. Edwards

Laboratories (1980), 61 Ohio St.2d 197, 199, 400 N.E.2d 384; Wells v. Spirit

Fabricating, Ltd. (1996), 113 Ohio App.3d 282, 288-289, 680 N.E.2d 1046.
                                      9

Dininny’s assignments of error may be overruled simply on this basis.

Volodkevich.

      {¶ 29} Nevertheless, even if this court assumes the affidavit Dininny

attached to his “motion to modify child support” was identical to the one he

attached to his Civ.R. 60(B) motion, the record still supports the trial court’s

decisions. Dininny failed to meet even one of the necessary requirements.

      {¶ 30} “[M]utual consent is the cornerstone of [Ohio’s] dissolution law.”

Knapp v. Knapp (1986), 24 Ohio St.3d 141, 144, 493 N.E.2d 1353. Thus,

“[c]ourts must be wary and ensure that relief under Civ.R. 60(B) is justified,

not merely a tool used ‘to circumvent the terms of a settlement agreement

simply because, with hindsight, [the moving party] has thought better of the

agreement which was entered into voluntarily and deliberately.” Jones v.

Jones, Meigs App. No. 09CA11, 2010-Ohio-2235, ¶13, citing McLoughlin v.

McLoughlin, Franklin App. No. 05AP-621, 2006-Ohio-1530, at ¶24.

      {¶ 31} In this case, the dissolution agreement’s terms clearly stated that

Dininny would pay for the child’s education through college.         It strains

credulity to credit an assertion that he did not know his son might choose to

attend an expensive institution. El Oraby v. Khamees, Franklin App. No.

08AP-359, 2008-Ohio-5437.     Moreover, as do many couples who choose to

petition for a dissolution of their marriage, Dininny and Hirshman chose one
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attorney to represent both of them; he cannot now legitimately claim that

attorney failed to represent his interests.       GTE Automatic Elec., at

paragraph four of the syllabus. Finally, as the trial court correctly pointed

out, Dininny’s affidavit provided absolutely no explanation for his nine-year

delay in seeking relief; obviously, he simply had a “change of heart” about

funding his child’s college education. Pumper v. Pumper, Cuyahoga App. No.

93916, 2010-Ohio-4131, ¶12; Jones, ¶14; Rodgers v. Rodgers, Cuyahoga App.

No. 91877, 2009-Ohio-3059, ¶21; cf., Francis v. Francis, Cuyahoga App. No.

93228, 2010-Ohio-676, ¶19-20.

     {¶ 32} Since the record supports the trial court’s decision, Dininny’s

assignments of error are overruled.

     Affirmed.

     It is ordered that appellee recover from appellant costs herein taxed.

     The court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

     A certified copy of this entry shall constitute the mandate pursuant to
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Rule 27 of the Rules of Appellate Procedure.



_______________________________
KENNETH A. ROCCO, JUDGE

MARY J. BOYLE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
