[Cite as Healy v. Healy, 2011-Ohio-5399.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96682




                                            LISA HEALY
                                                      PLAINTIFF-APPELLANT

                                                vs.

                                            PAUL HEALY
                                                      DEFENDANT-APPELLEE




                                            JUDGMENT:
                                             AFFIRMED



                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                 Domestic Relations Division
                                      Case No. D-332625

        BEFORE: S. Gallagher, J., Stewart, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED: October 20, 2011
ATTORNEY FOR APPELLANT

Sarah Gabinet
Kohrman Jackson & Krantz PLL
1375 East Ninth Street
One Cleveland Center, 20th Floor
Cleveland, OH 44114


ATTORNEY FOR APPELLEE

Randall M. Perla
19443 Lorain Road
Fairview Park, OH 44126




SEAN C. GALLAGHER, J.:

       {¶ 1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1, the trial court records, and briefs of counsel.

       {¶ 2} Plaintiff-appellant Lisa Healy (“Lisa”) appeals the decision of the Cuyahoga

County Court of Common Pleas, Domestic Relations Division, that denied her Civ.R.

60(B) motion for relief from judgment. For the reasons stated herein, we affirm the

judgment of the trial court.

       {¶ 3} On     July 22,    2010,   Lisa    filed   a   complaint   for    divorce   from

defendant-appellee Paul Healy (“Paul”).        The trial court issued a judgment entry of

divorce in January 2011, which incorporated a separation agreement and an addendum

that were entered into by the parties. These documents covered, among other terms,

property division and spousal support. The separation agreement was silent as to the
issue of insurance benefits and did not require either party to maintain health insurance

for the other.

       {¶ 4} Prior to their divorce, Lisa sent an email to Paul requesting COBRA cost

information. Lisa requested this information because her health insurance coverage was

through Paul’s employer and would terminate upon divorce. Paul sent an email response

indicating as follows:

       {¶ 5} “To participate in COBRA, the process begins with Lisa and is completely

controlled by Lisa. I have nothing to do with the COBRA process. I have neither

influence on the process nor even knowledge if Lisa chooses COBRA (or not). Lisa’s

coverage with me will end the day of the divorce. To experience no gap in coverage,

Lisa will first need to obtain a copy of the divorce document. With that document in

hand, Lisa should then call (the next day) the NYCB Benefits Unit [631-650-8779]. The

NYCB Benefits Unit will guide Lisa on how to successfully enroll into COBRA with no

gap in coverage. Lisa’s monthly COBRA costs will be $341.11.”

       {¶ 6} On March 11, 2011, Lisa filed a Civ.R. 60(B) motion for relief from

judgment.    She asserted she relied on Paul’s statement concerning the amount of

COBRA premiums and that this was one of the major considerations in negotiating

spousal support.   She claimed she was surprised to discover Paul had changed his

insurance during open-enrollment in November 2009 to a high-deductible plan. She

further asserted that her COBRA premiums would be $374.11 per month, not $341.11 as

represented by Paul.
       {¶ 7} In opposing the motion, Paul argued that spousal support was not premised

upon Lisa’s ability to obtain health insurance, that it was incumbent upon Lisa to explore

her health insurance options, that the evidence does not establish that a misrepresentation

was made, and that Lisa was free to obtain health insurance from another provider if she

felt COBRA was too expensive.

       {¶ 8} The trial court denied Lisa’s motion without an evidentiary hearing. Lisa

timely filed this appeal challenging the ruling.

       {¶ 9} “In order to prevail on a motion for relief from judgment 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. If any of these three requirements is not met, the motion should be

overruled. The question of whether relief should be granted is addressed to the sound

discretion of the trial court.”    (Citations omitted.)   Rose Chevrolet, Inc. v. Adams

(1988), 36 Ohio St.3d 17, 20, 520 N.E.2d 564. An evidentiary hearing is not required

where the motion and attached evidentiary material do not contain allegations of

operative facts that would warrant relief under Civ.R. 60(B). BancOhio Natl. Bank v.

Schiesswohl (1988), 51 Ohio App.3d 130, 554 N.E.2d 1362. We review a trial court’s

denial of a Civ.R. 60(B) motion for relief from judgment under an abuse-of-discretion

standard. Rose Chevrolet, Inc., 36 Ohio St.3d at 20.

       {¶ 10} The timeliness of Lisa’s motion is not disputed.      Indeed, Lisa filed her

motion within three months of the judgment entry of divorce. However, she failed to
demonstrate that she is entitled to relief from judgment under any of the grounds provided

in Civ.R. 60(B)(1)-(5).

      {¶ 11} Under Civ.R. 60(B), a party is entitled to relief from judgment where there

is (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered

evidence; (3) fraud, misrepresentation or other misconduct of the adverse party; (4) it is

no longer equitable that the judgment should have prospective application; or (5) any

other reason justifying relief. Lisa claims she is entitled to relief from the spousal

support award because she had no knowledge that Paul had changed their health

insurance coverage, resulting in significant financial consequences that she had not

anticipated when she negotiated spousal support. She claims she was surprised by the

discovery of this information and that Paul misrepresented the cost of the COBRA

premiums.

      {¶ 12} Upon our review, we find Lisa failed to satisfy her burden of showing

operative facts to prevail upon a motion for relief from judgment.    The record reflects

that the separation agreement contained no provision with regard to maintaining health

insurance for the benefit of a spouse.   As such, there were no restrictions on insurance

coverage and Paul was under no obligation to maintain healthcare coverage for Lisa.

The email sent from Paul provided her with the contact information for COBRA and

clearly indicated that coverage would not be maintained following the divorce.       Lisa

could have made her own inquiries to verify her healthcare costs and to explore her

healthcare options prior to entering into the separation agreement and cannot now claim
inadvertence, surprise, or excusable neglect.    Further, the evidence does not support a

finding that Paul knowingly made any misrepresentation of material fact with the

intention of misleading Lisa.     While the amount of Lisa’s healthcare coverage was

higher than she anticipated, this was not a condition of spousal support. A party cannot

rely on Civ.R. 60(B) to vacate a settlement agreement because of a change in finances

when the party should have considered such a change in negotiating the settlement.         See

Pumper v. Pumper, Cuyahoga App. No. 93916, 2010-Ohio-4131, ¶ 20.

       {¶ 13} Finding no abuse of discretion, we affirm the decision of the trial court.

       Judgment 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 issue out of this court directing the common

pleas court 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.



SEAN C. GALLAGHER, JUDGE

MELODY J. STEWART, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
