[Cite as Oyer v. Oyer, 2012-Ohio-2789.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

CATHERINE OYER                                    JUDGES:
                                                  Hon. Patricia A. Delaney, P.J.
        Appellant                                 Hon. William B. Hoffman, J.
                                                  Hon. Sheila G. Farmer, J.
-vs-
                                                  Case No. 2011CA00229
KENNETH OYER

        Appellee                                  OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Stark County Court of
                                              Common Pleas, Family Court Division,
                                              Case No. 2010 DR 00470


JUDGMENT:                                     Dismissed


DATE OF JUDGMENT ENTRY:                        June 18, 2012


APPEARANCES:


For Appellant                                 For Appellee


SUSAN J. LAX                                  WENDY J. ROCKENFELDER
755 White Pond Dr., Suite 403                 5502 Market Avenue North, Suite B
Akron, Ohio 44320                             Canton, Ohio 44721
Stark County, Case No. 2011CA00229                                                      2

Hoffman, J.


         {¶1}   Plaintiff-Appellant Catherine Oyer appeals the September 20, 2011

Judgment Entry of the Stark County Court of Common Pleas, Family Court Division,

denying her Motion for Relief from Judgment. Defendant-appellee is Kenneth Oyer.

                                    STATEMENT OF THE CASE1

         {¶2}   Appellant filed a complaint for divorce in 2010. The parties reached a

settlement which was read into the record on December 13, 2010. Because of issues

regarding Appellant’s health insurance coverage, the trial court agreed to wait until May

of 2011, to enter a final judgment.

         {¶3}   Appellee’s counsel forwarded a proposed Entry to the trial court which had

not been approved by Appellant’s counsel. That proposed entry was approved by the

trial court and filed on March 10, 2011.

         {¶4}   On April 29, 2011, Appellant filed a Motion for Relief from Judgment/Oral

Argument Requested. Said motion was denied by Judgment Entry filed September 20,

2011. It is from that judgment entry Appellant prosecutes this appeal, assigning as

error:

         {¶5}   “I. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

FOR RELIEF FROM JUDGMENT ON THE BASIS OF A MISTAKE OF FACT, WHERE

APPELLANT PRESENTED SUFFICIENT EVIDENCE THAT THE FILED JUDGMENT

ENTRY DID NOT CONFORM TO THE TERMS OF THE SETTLEMENT, AS SET

FORTH DURING THE DECEMBER 10, 2010 TRIAL.”




1
    A rendition of the facts is unnecessary for our disposition of this appeal.
Stark County, Case No. 2011CA00229                                                       3


      {¶6}   In response to Appellant’s alleged error, Appellee asserts the assignment

of error should be overruled for two reasons; the first of which is because a motion to

vacate is not a substitute for a timely appeal.2 We agree.

      {¶7}   Civil R.60(B) is not available as a substitute for a timely appeal nor can the

rule be used to circumvent or extend the time requirements for an appeal.            Rose

Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 20. See also Fifth Third Mortgage,

Co. v. Fantine, 5th Dist. No. 11 CA 20, 2011-Ohio-4968, at ¶19. Appellant claims the

entry of divorce approved by the trial court did not accurately reflect the terms of the

parties’ in-court agreement as evidenced by the transcript of the December 13, 2010

hearing. We agree with Appellee, any alleged error or discrepancy would have been

apparent from that record and subject to review on direct appeal. Having failed to take

timely appeal from that entry, we dismiss the present appeal.

By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur                           s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY


                                            s/ Sheila G. Farmer __________________
                                            HON. SHEILA G. FARMER




2
  Given our agreement with Appellee’s first response, we find it unnecessary to discuss
his second response.
Stark County, Case No. 2011CA00229                                                 4


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


CATHERINE OYER                             :
                                           :
       Appellant                           :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
KENNETH OYER                               :
                                           :
       Appellee                            :         Case No. 2011CA00229


       For the reason stated in our accompanying Opinion, this appeal is ordered

dismissed. Costs assessed to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Patricia A. Delaney _________________
                                           HON. PATRICIA A. DELANEY


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER
