INAL IN THE SUPREME COURT OF OHIO Thomas Frantz 0 9-121 . 4 Appellant On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate vs. District Christine S. Martin Court of Appeals Case No. 92211 Appellee MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT THOMAS FRANTZ Marc L. Stolarsky ( 0066008) (COUNSEL OF RECORD) Marc L. Stolarsky Law, LLC P.O. Box 24221 Cleveland, Ohio 44124 (440) 655-2342 Fax No. 440-684-0613 ( Call to Connect) [email protected]COUNSEL FOR APPELLANT, THOMAS FRANTZ Mary V. O. Walsh (0022757) (COUNSEL OF RECORD) 4403 St. Clair Avenue Cleveland, Ohio 44103 (216) 377-0615 Fax No. (216) 881-3928 COUNSEL FOR APPELLEE, CHRISTINE S. MARTIN F^ ^^I^ ^^ dl1ln rl o ?009 CLERlt OF COURT SUPREME COURT OF OHIO
Transcript
INAL
IN THE SUPREME COURT OF OHIO
Thomas Frantz 0 9-121 . 4
Appellant On Appeal from the Cuyahoga CountyCourt of Appeals, Eighth Appellate
vs. District
Christine S. Martin Court of AppealsCase No. 92211
Appellee
MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT THOMAS FRANTZ
Marc L. Stolarsky (0066008) (COUNSEL OF RECORD)Marc L. Stolarsky Law, LLCP.O. Box 24221Cleveland, Ohio 44124(440) 655-2342Fax No. 440-684-0613 (Call to Connect)[email protected]
COUNSEL FOR APPELLANT, THOMAS FRANTZ
Mary V. O. Walsh (0022757) (COUNSEL OF RECORD)4403 St. Clair AvenueCleveland, Ohio 44103(216) 377-0615Fax No. (216) 881-3928
COUNSEL FOR APPELLEE, CHRISTINE S. MARTIN F^ ^^I^ ^^
dl1ln rl o ?009
CLERlt OF COURTSUPREME COURT OF OHIO
TABLE OF CONTENTS
EXPLAINATION OF WHY THIS CASE IS OF PUBLIC Pa¢eAND GREAT GENERAL INTEREST AND INVOLVES ASUBSTANTIAL CONSTITUTIONAL QUESTION . ......................................................... 1
STATEMENT OF THE CASE AND FACTS .................................................................... 3
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ........................................... 6
Proposition of Law No. I: The Appellee failed to satisfy thethree requirements of GTE Automatic v. ARC Industries andtherefore their Motion For Relief should not have been granted ............... 6
Proposition of Law No. II: Appellee's Motion For Relief FromJudgment was filed after waiting 363 days which was clearly inviolation of the theory of laches and thereby rewarding Appellee forwaiting and punishing Appellant, his new wife and son ............................ 9
Notice of Appeal to the Ohio Supreme Court(July 2, 2009) ....................................................................................................... 14
Opinion of the Cuyahoga County Court of Appeals(June 1, 2009) ..................................................................................................... 16
TABLE OF AUTHORITIESPaee
CASES:
A. Van Brackel & Sons, Inc. v. Schroeder (Sept. 22, 1995),Putnam App. No. 12-95-3 ............................................................................................... 7
Adomeit v. Baltimore (1974), 39 Ohio App.2d 97 ............................................................ 9
Arrow Builders Inc. v. Delawder (Nov. 30, 2000), Marion App. No. 9-2000-70 ............ 6
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217 .......................................................... 6
Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64 .. ................................................. 8
Drongowski v. Salvatore, Cuyahoga App. No. 61081, 1992-Ohio-5027 .......................... 8
Galley v. Galley (May 18, 1994), Miami App. Nos. 93-CA-31 and 93-CA-32 . ............... 8
GTE Automatic Electric v. ARCIndustries (1976), 47 Ohio St.2d 146 .................... 1, 5, 6, 7
Irwin v. Irwin (Sept. 27, 1996), Lake App. No. 95-L-102 ... ............................................. 8
Kaczur v. Decara, Cuyahoga County App. No. 67546, 1995-Ohio-3038 ... ..................... 8
Loving v. Virginia, 388 U.S. 1(1967) ............................................................................... 1
Mount Olive Baptist Church v. Pipkins Paints (1979),64 Ohio App.2d 285, 289, 18 0.O.3d 319 ...................................................................... 9
Natl. City Bank v. Hostelley (July 3, 1991), 1991 Ohio App. LEXIS 3292,Cuyahoga App, No. 58554, unreported .......................................................................... 10
Priddy v. Ferguson, Union App. No. 14-99-38, 1999-Ohio-957 ..................................... 6
Strack v. Pelton (1994), 70 Ohio St.3d 172 ...................................................................... 6
Thomas Frantz v. Christine S. Martin, case number DR-07-314389 ............................... 3
Thomas Frantz v. Christine S. Martin (June 1, 2009),Cuyahoga App. No. 92211, unreported ......................................................................... 5
Verco Industries v. Fintastic Centers (Oct. 28, 1998), Marion App. No. 9-98-17 ........... 9
Ohio Rule of Civil Procedure 60(B) ................................................................... 3, 6, 7, 8, 9, 10U.S. Const. Amend. XIV ......................................................................................................... 1U.S. Const. Amend. V ............................................................................................................. 1
EXPLAINATION OF WHY THIS CASE IS CASE OF PUBLIC AND GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION
The issues in this matter are of great public and general interest and involve substantial
constitutional questions of the equal protection clause and due process clause of the Fifth and
Fourteenth Amendments to the United States Constitution.
The Fourteenth Amendment to the Constitution states that: "[n]o State shall make or
enforce any law which shall ... deprive any person life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S.
Const. Amend. XIV.
A judgment is void if the court acted in a manner inconsistent with due process. In
granting Appellee's Motion For Relief From Judgment, the Trial Court failed to follow
procedures set forth in GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146,
which therefore violated Appellant's due process right.
Appellant was denied equal protection of the law as he followed all the Ohio Rules of
civil Procedure and was denied a divorce which in effected, voided his marriage to his new wife.
In addition, by granting Appellee's Motion For Relief Appellant the Trial Court has
denied his right to marry. In a 1967, seminal decision, in Loving v. Virginia, 388 U.S. 1(1967),
Justice Warren upheld the right to marry on the basis of the Equal Protection clause stating: "The
freedom to marry has long been recognized as one of the vital personal rights essential to the
orderly pursuit of happiness by free men." Id. He argued that "[m]arriage is one of the'basic
civil rights of man," fundamental to our very existence and survival." Id. The Loving decision
ruled that marriage is a fundamental right guaranteed by the U.S. Constitution. Id.
If Appellee is granted her petition to reverse the divorce granted by the Cuyahoga County
1
Domestic Relations Court after waiting an inordinate amount of time it would deny Appellant the
right to wed his now wife, it would make Appellant a bigamists, and it makes his son a bastard.
2
STATEMENT OF THE CASE AND FACTS
In the trial court case captioned Thomas Frantz v. Christine S. Martin, case number DR-
07-3 1 43 89, in the Cuyahoga County Court of Domestic Relations, the Appellant Thomas Frantz
was granted a divorce from Appellee Christine S. Martin on August 2, 2007. Appellant followed
all Ohio Civil Rules of notice and procedure to achieve this result. On July 31, 2008, the
Appellee filed a Motion For Relief From Judgment under Ohio Rule of Civil Procedure 60(B),
claiming that she did not receive proper notice of the final hearing. The Court granted the
Motion For Relief on September 12, 2008. This appeal was filed with the Eighth Appellate
District Court on October 10, 2008 and on June 1, 2009 this appeal was denied.
Before their marriage Appellant and Appellee worked together in a computer consulting
business and acquired debts as part of that business. Appellant and Appellee agreed to share all
expenses and the workload of the business, but Appellee would regularly abandon Appellant and
travel to South Carolina for months at a time. Because she would not do her part of the workload
as promised, the business folded due to excessive debts. These debts were therefore separate
property and not part of the marriage.
Long after the business failed, Appellant and Appellee were married at Charleston, South
Carolina on May 7, 2000, and there were no children born as issue of this marriage. In fact the
marriage was a sham in name only In fact they were married for four years and never
consurmnated the marriage.
Appellant and Appellee physically separated in 2004 and they went their separate ways,
splitting assets and debts at that time. However, the parties stayed legally married. During all of
this time Appellee never attempted to file for divorce or address the alleged debts. Appellant
3
tried numerous times to communicate with Appellee about ending the marriage, but she would
not respond to his attempts to open communication. This was a pattern of non-communication
by Appellee that ended only when she filed her Motion For Relief From Judgment.
On February 2, 2007, after years of separation and wishing to move on with his life so he
could remarry, Appellant filed a Complaint For Divorce in the Cuyahoga County Domestic
Relation's Court along with a Motion For A Temporary Restraining Order. The TRO was
granted by the Court and also sent to Appellant. Appellant requested that Appellee be served by
the Court with the Complaint by certified mail.
On February 18, 2007 Appellant's counsel sent by regular United State mail to Appellee
request for production of document and interrogatories to the Sunrise Road address where
Appellant knew Appellee was located. This correspondence was not returned so Appellee did
receive it and in effect had another notice of this proceeding. To date she has not responded to
those requests or produced the documents she said she had in her possession showing all of the
debts Appellant allegedly owes to her.
On February 27, 2007, the Court determined that Appellee was not served by certified
mail. Appellee was living at the address listed, but failed to sign the certified mail green card.
On March 15, 2007, Appellant filed to have a special processes server give personal
service to Appellee of the Complaint costing him an additional $113.00. The server attempted
three times to serve Appellee, but she refused to open the door to accept it. Later the Appellee
stated that she didn't want to open the door to a man who she didn't know.
On April 19, 2007, Appellant filed with the Court a request for publication service in the
Daily Legal News at Appellant's expense of $181.10. For six weeks the notice appeared in the
newspaper according to Ohio Civil Rule 4.4.
4
On July 9, 2007 Appellant filed notice of a perfected publication service. The Court set a
default hearing for August 1, 2007 which all parties had notice of. This attorney was unable to
attend, and filed a Motion For a Continuance. The Court set the new hearing date for August 2,
2007.
On August 2, 2007, Appellant attended the final hearing for divorce along with a witness.
The Appellee failed to attend although she received the Motion For Continuance and was aware
there would be a new final hearing date set as soon as possible. She failed to contact the Court,
retain an attorney or check the docket for the hearing date.
On August 2, 2007, the Court granted Appellant a divorce from Appellee. Due to the
Court's schedule on that day, Appellant was required to wait several hours until later in the day,
but did so patiently in the halls of the Court to complete this legal action. In all that time
Appellee failed to make an appearance or even inquire as to the hearing time.
After his divorce was final, Appellant married his now wife and they were blessed with a
baby. They lived together happily until Appellee decided she would contest the divorce.
On July 31, 2008 Appellee filed a Motion For Relief From Judgment claiming that the
marital debts had not been addressed in the divorce decree 363 days earlier. The Trial Court
granted this Motion on September 12, 2008.
Appellee Thomas Frantz filed an appeal in the Court of Appeals of Ohio Eighth
Appellate District Cuyahoga County on October 10, 2008. On June 1, 2009 the Appeals Court
denied this appeal 2 to 1. In Justice Stewart's dissent, she stated that Appellee had in her Motion
For Relief, " * * * failed to satisfy two of the three mandatory prongs of the GTE test: she did
not have a proper ground for relief and did not timely file the motion." Thomas Frantz v.
Christine S. Martin (June 1, 2009), Cuyahoga App. No. 92211, unreported. Specifically, Justice
5
Stewart stated that: (1) "A party's alleged fraud to disclose a marital asset during a divorce action
is not a proper ground for relief from a default judgment under Civ.R. 60(B(3); (2) "* **
[A]ppellee's attempt to state a ground under the catch-all provision on Civ.R. 60(B)(5) is
likewise unavailing because it does not state the ground on which relief should be granted." and
(3) A Civ.R. 60(B) motion can be untimely, even though filed within a one-year time period
allowed by the rule, if it is not filed within a reasonable period of time after final judgment."
Thomas Frantz v. Christine S. Martin (June 1, 2009), Cuyahoga App. No. 92211, unreported,
dissent.
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. I: Appellee failed to satisfy the threerequirements of GTEAutomatic v. ARCIndustries and thereforetheir Motion For Relief should not have been granted.
The decision to grant or deny a Civ.R. 60(B) motion lies within the sound discretion of the
trial court and will not be reversed on appeal absent an abuse of discretion. Priddy v. Ferguson,
Union App. No. 14-99-38, 1999-Ohio-957; citing Strack v. Pelton (1994), 70 Ohio St.3d 172,
174. The term "abuse of discretion" cormotes more than an error of law or judgment; it implies
that the court's attitude is unreasonable, arbitrary or unconscionable. Arrow Builders Inc. v.
Delawder (Nov. 30, 2000), Marion App. No. 9-2000-70; citing, Blakemore v. Blakemore (1983),
5 Ohio St.3d 217, 219.
The three requirements necessary to succeed on a motion for relief from judgment have
been set forth in GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, at
paragraph two of the syllabus. The Supreme Court of Ohio stated that in order to prevail on a
6
motion brought under Civ.R. 60(B), the moving party 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, 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.
Civ.R. 60(B).
The record indicates that the Appellee has not met the requirements of the GTE test and the
Trial Court abused it's discretion in granting their Motion For Relief First, in order for a movant
to demonstrate a "meritorious defense," the movant's burden is only to allege a meritorious
defense, not that she will prevail on the defense. A. Van Brackel & Sons, Inc. v. Schroeder (Sept.
22, 1995), Putnam App. No. 12-95-3. In her Motion, the Appellee presented an Affidavit in
which she avers that she in number 6: "That unknown to defendant, the divorce was heard the
next day, on August 2, 2007; defendant got no [sic] notice of that hearing." In fact Appellee
failed to attend the hearing on the original date, failed to inquire about the new hearing date, and
failed to respond to all other notices and even the final Judgment Divorce Entry notice unti1363
days had passed.
Appellee 's Civ.R. 60(B) motion also fails to meet the second requirement of the GTE test.
The critical issue here is whether Appellee's motion is predicated on one of the five reasons
listed in Civ.R. 60(B). Civ.R. 60(B) provides in pertinent part that:
On motion and upon such terms as are just, the court may relieve a party or his legalrepresentative 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 * * * misrepresentation or other misconduct of an adverse party;(4) the judgment has been satisfied, released or discharged *** or(5) any other reason justifying relief from the judgment. ***
7
Appellee has not met the burden of proof that any of these apply in her Motion.
Of the third requirement of the GTE test, Appellee failed to timely filed her Motion. The
Judgment Entry was signed on August 2, 2007, and the Appellee filed her Motion to vacate on
July 31, 2008, at 363 days of the one year time limit.
"[T]he courts of this state have generally held that relief from [a divorce] decree will not be
granted when the alleged `mistake' was merely a unilateral mistake on the part of one party or
her counsel." Breckenridge v. Breckenridge, Geauga App. No. 2003-G-2533, 2004-Ohio-1845,
at 13, citing Irwin v. Irwin (Sept. 27, 1996), Lake App. No. 95-L-102. In such situations, the
party alleging the mistake "must show why he was justified in failing to avoid mistake or
inadvertence; gross carelessness is insufficient " Galley v. Galley (May 18, 1994), Miami App.
Nos. 93-CA-31 and 93-CA-32. Appellee has not shown why she ignored all such notices of this
proceeding. When a movant is aware that there are grounds for relief and delays filing the
motion, the courts will require the movant to explain the reasons for the delay. See, e.g. Kaczur
v. Decara, Cuyahoga County App. No. 67546, 1995-Ohio-3038 (Civ.R. 60(B) motion untimely
filed when movant offered no reasonable explanation for a nine-month delay in filing the
in filing Civ.R. 60(B) motion held untimely because movant failed to provide any explanation).
Appellee failed to bring this action in a timely way in spite of admitting she received the notice
of the fmal divorce within days of it being granted.
Civ.R. 60(B)(5) is known as the "catch- all provision" and permits a court to grant such a
motion for "any other reason justifying relief." This provision however, cannot be used as a
substitute for any other grounds set forth in the rule. Caruso-Ciresi, Inc. v. Lohman (1983), 5
Ohio St.3d 64, paragraph one of the syllabus. The generally accepted rule that a Civ.R. 60(B)
8
motion based upon "any other reason justifying relief from the judgment" should only be granted
"in an extraordinary and unusual case when the interests of justice warrants [sic] it." Verco
Industries v. Fintastic Centers (Oct. 28, 1998), Marion App. No. 9-98-17; citing, Adomeit v.
Baltimore (1974), 39 Ohio App.2d 97.
In the instant case, the Appellee failed to timely filed her Civ.R. 60(B) motion, failed to
demonstrate a meritorious defense, and failed pursuant to Civ.R. 60(B)(5), provided the
Domestic Relation's Court with evidence justifying relief from the final Judgment Entry of
Divorce.
On September 12, 2008, Appellee 's Motion For Relief was granted, thus reversing the
previous Judgment Entry granting Appellant a divorce and prompting the appeal to the Eight
Appellate District Court.
Proposition of Law No. II: Appellee's Motion For Relief FromJudgment was filed after waiting 363 days which was clearly inviolation of the theory of laches and thereby rewarding Appellee forwaiting and punishing Appellant, his new wife and son.
The legal concept of laches states that a party may not bring an action after waiting an
inordinate amount of time, thereby injuring another party. Laches is an equitable doctrine. The
person invoking laches is asserting that an opposing party has "slept on its rights", and that, as a
result of this delay, that other party is no longer entitled to its original claim. Put another way,
failure to assert one's rights in a timely manner can result in claims being barred by laches.
Laches is a form of estoppel for delay.
In Mount Olive Baptist Church v. Pipkins Paints (1979), 64 Ohio App.2d 285, 289, 18
0.O.3d 319, 321, the Court held that a party cannot delay in bringing an action and expect relief:
"This court has held that an unjustified four-month delay necessarily precludes relief from a
9
money judgment. It has even been held that an unjustified delay for two and one-half months is
unreasonable as a matter of law. Zerovnik v. E.F. Hutton & Co. (June 7, 1984), Cuyahoga App.
No. 47460, unreported. Further, we affirmed the denial of relief from a money judgment when
the movant failed to justify his fifty-one-day delay in seeking that relief. Riley v. Heritage Mut.
See, also, Natl. City Bank v. Hostelley (July 3, 1991), 1991 Ohio App. LEXIS 3292, Cuyahoga
App. No. 58554, unreported.
On July 31, 2008, 363 days after he final divorce, Appellee by and through Counsel filed a
Motion For Relief From Judgment claiming she did not receive notice of the action, although did
receive numerous correspondences and did nothing. Certainly this is far after a reasonable
amount of time under Civ.R. 60(B) and would only serve to injure Appellant.
The purpose of Appellee's Motion For Relief is that she now claims Appellant owes her for
alleged debts, but for years failed to do anything. Appellee's actual goal here is to punish
Appellant for wanting to divorce her and move on with his life.
If as Appellee claims that she did not receive notice of the divorce until August 6, she
should have filed this Motion For Relief within a reasonable time and not waited a year to do so.
The spirit of Ohio Civil Rule 60(B) is that a party may not have a court judgment reversed after a
year because it would be injurious and unfair to call a party back into Court after relying on a
determination by the Court.
Appellant has moved on with is life: he has remarried and now has a child with his new
wife. Any decision to reverse the Court decree for divorce would nullify his marriage and his
son would therefore not be legitimate. The legal, economic, moral, spiritual and ethical
10
ramifications of nullifying his marriage would be tremendously injurious to Appellant and his
family.
Appellee failed to sign for certified mail service, to personal service, open her door for a
special process server, respond to letters, motions, discovery requests, and publication service,
failed to call, email, write or fax Appellant, failed to seek counsel, and only now has decided to
reopen this matter that is a now year old.
The Court has long ruled that a party who fails to assert their rights loses them and
Appellee failed to assert any rights until one year after this divorce was fmal. The Appellee
would not be injured by the Court determining the divorce to be valid, but Appellant would be
terribly effected to his detriment. By granting Appellee's Motion the Court rewarded Appellee 's
inaction and failure to act after receiving due notice of the action for divorce.
While they were married Appellant and Appellee owned a business and shared the assets
and debts as a married couple. When they split they divided these assets and debts fairly and
have lived as separate since that time, neither asking anything of the other, having no contact at
all. The parties could have lived separately forever since they had divided their assets and debts,
but Appellant wanted to remarry.
CONCLUSION
For the reasons discussed above, this case involves matters of public and great general
interest and a substantial constitutional question of the due process and equal protection clauses
of the Fifth and Fourteenth Amendment's to the United States Constitution. The Appellant
requests that this court accept jurisdiction in this case so that the important issues presented will
be reviewed on the merits.
11
Respectfully submitted,
Marc L. Stolarsky, Counsel of Record
Marc L. )arskyCOUN L FOR APPELLANTTHOMAS FRANTZ
12
Certificate of Service
I certify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinaryU.S. mail to co se1 for Appellee, Mary V. G. Walsh, 4403 St. Clair Avenue, Cleveland, Ohio44103 on July A , 2009.
COUNSEL FOR APPELLANT,THOMAS FRANTZ
13
JUN 1 - 2009
ffaurt nf Appexls uf 04iuEIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION. No. _92211
THOMAS FRANTZ
vs.
PLAINTIFF-APPELLANT
CHRISTINE S. MARTIN
DEFENDANT-APPELLEE
JUDGMENT:AFFIRMED
Civil Appeal from theCuyahoga County Common Pleas Court
Domestic Relations DivisionCase No. D-314389
BEFORE: Boyle, J., Stewart, P.J., and Sweeney, J.
RELEASED: May 21, 2009
JOURNALIZED: JUN 1 - 2009Ch108092211 57869543
1 IN 11 IN 11I1O1^^^ing I I'0Y0583 00032
-1-
ATTORNEY FOR APPELLANT
Marc L. StolarskyMarc L. Stolarsky Law, LLCPost Office Box 24221Lyndhurst, Ohio 44124
ATTORNEY FOR APPELLEE
Mary V.G. Walsh4403 St. Clair AvenueCleveland, Ohio 44103
r J F•APPEALS
glliiniunumflhIIUI
OfJRTO F APPEALSDEP.
N.B. This entry is an announcement of the court's decision. See App.R. 22(B) and26(A); Loc.App.R. 22. This decision will be journaHzed and will become the judgmentand order of the court pursuant to App.R. 22(C) unless a motion for reconsiderationwith supporting brief, per App.R. 26(A), is filed within ten (10) days of theannouncement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this court's announcementof decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. II, Section 2(A)(1).
FILED AND }OURNA^,iZEDPER APP. R. 22(E)
JUN 1 - 2009
GERALD E. FUERSTCLEAKOP,TRE.Fo R O
ANNOIINCEMEFT OF DECISIONPER APP. R. 22(i;, 221a1 A_ND 26(A)
RV%'CE YVL•'.D
MAY 2 1 2009
GERALD E. UE 8T
01:E1683 IM0033
-1-
MARY J. BOYLE, J.:
This appeal is before the court on the accelerated docket pursuant to
App.R. 11.1 and Loc.R. 11.1.
Plaintiff-appellant, Thomas Frantz ("Frantz"), appeals the trial court's
decision granting the motion for relief from judgment of defendant-appellee,
Christine Martin ("Martin"). Finding no merit to the- appeal, we af-ftrm.
On August 2, 2007, the trial court granted Frantz a divorce from Martin.
Less than a year later, Martin moved to vacate the divorce judgment entry on
the grounds that service was never perfected and that she never received notice
of the trial date. The trial court granted Martin's motion, vacated the divorce
decree, and reinstated the case. Frantz appeals, raising the following two
assignments of error:
"[L] The trial court erred in granting the defendant-appellee's motion for
relief from judgment without finding that it had satisfied any of the three
requirements listed in GTE Automatic Electric v. ARC Industries [(1976), 47
Ohio St.2d 146].
"[II.] The trial court erred in granting the defendant-appellee's motion for
relief from judgment against the legal theory of laches thereby rewarding
defendant-appellee for waiting 363 days to file her motion after numerous
wal1^ 83 iqG 034
-2-
notices of the proceeding and thus punishing plaintiff-appellant who has
remarried and has had a baby."
GTE Test
In his first assignment of error, Frantz argues that Martin failed to satisfy
the three elements of the GTE test to warrant the trial court's granting of her
Civ.R. 60(B) motion for relief from judgment.
Under Civ.R. 60(B), the court has the authority to vacate a final judgment
due to: "(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."
To prevail on a motion for relief from judgment under Civ.R. 60(B), the
movant must demonstrate: (1) the party has a meritorious defense or claim to
va-0683 50035
-3-
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 at paragraph two of the syllabus. If a movant fails to satisfy any
one of these requirements, the trial court should deny a Civ.R. 60(B) motion.
Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17,20; Svoboda v. Brunswick
(1983), 6 Ohio St.3d 348, 351.
The trial court has discretion in deciding a motion for relief from judgment
under Civ.R. 60(B). Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77; Laatsch v.
Laatsch, 6th Dist. No. WD-05-101, 2006-Ohio-2923, q 16. Therefore, we will not
disturb a trial court's judgment on appeal absent an abuse of discretion. Id. An
abuse of discretion is more than an error in judgment or a mistake of law; it
connotes that the court's attitude is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. "When applying the
abuse of discretion standard, a reviewing court is not free to merely substitute
its judgment for that of the trial court." In re Doe (1990), 57 Ohio St.3d 135,
137-138, citing Berk v. Matthews (1990), 53 Ohio St.3d 161, 169.
wl:0683 00036
-4-
Applying the foregoing standard of review and the required GTE test, we
cannot say that the trial court abused its discretion in granting Martin's motion
for relief from judgment under Civ.R. 60(B).
Contrary to li'rantz's assertion, we find that Martin satisfied all three
elements of the GTE test.
First, Martin challenged the division of marital property as being unfair
and inequitable. She argued that Frantz owed her money from loans made
during the marriage and further asserted in her affidavit that there was an
inequitable distribution of marital property. Although Frantz contends that
Martin will not prevail on her claims, this contention is irrelevant for purposes
of satisfying the first element of the GTE test. See Colley v. Bazell (1980), 64
Ohio St.2d 243, 247, fn. 3 ("movant's burden is to allege a meritorious defense,
not to prevail with respect to the truth of the meritorious defense").
Next, we find that Martin satisfied the second element of the GTE test,
demonstrating that she was entitled to relief under Civ.R. 60(B)(5), the catch-all
provision. Martin established that she never received notice of the rescheduled
trial date. Frantz even concedes that notice was never provided to Martin
regarding the rescheduled trial date. Because the trial court failed to provide
notice of the trial, which resulted in final judgment being rendered against
Martin in her absence, we find that the catch-all provision of Civ.R. 60B(5) was
VR,0683 00037
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appropriately applied in this case. See Joe Soler Co. v. 5-Star Brokerage, Inc.
(Oct. 11, 1990), 10th Dist. No. 90AP-505 (failure to provide notice of important
stages in judicial proceedings deprived party of due process and warranted relief
under Civ.R. 60(B)(5)).
Finally, Martin moved for relief from judgment less than a year from the
trial court's judgment entry granting a divorce. "From a review of case law
regarding timeliness of Civ.R. 60(B) motions, it is clear that each case must be
decided upon its own facts as a delay of four years has been held to be
reasonable, and a delay of four months has been held to be unreasonable."
Kenney v. Derrick (Dec. 22, 1995), 11th Dist. No. 95-L-068, citing In re
Dissolution of Marriage of Watson (1983), 13 Ohio App.3d 344; Mount Olive
Baptist Church v. Pipkins Paints attd Home Improvement Ctr., Inc. (1979), 64
Ohio App.2d 285. Given the equitable powers unique to a domestic relations
court and the fact that the lower court sits in the best position to determine
whether something was filed within a reasonable time, we cannot say that the
trial court abused its discretion in finding that Martin satisfied the third
element. See R.C. 3105.011 (stating the domestic relations court "has full
equitable powers and jurisdiction appropriate to the determination of all
domestic relations matters"). Indeed, we cannot substitute our judgment for the
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trial court's merely because we may have reached a different conclusion. Here,
the trial court's decision was not unreasonable, arbitrary, or unconscionable.
Accordingly, the first assignment of error is overruled.
Doctrine of Laches
In his second assignment of error, Frantz contends that the doctrine of
laches precluded the trial court from granting Martin's motion for relief from
judgment. He argues that Martin waited too long to file the motion, that he has
moved on with his life, including remarrying and having a child, and that he
should not be unfairly penalized for her excessive delay. The doctrine of laches,
however, is an affirmative defense to a claim. See State ex rel. Polo v. Cuyahoga
Cty. Bd. of Elections, 74 Ohio St.3d 143, 145, 1995-Ohio-269 (elements for the
affirmative defense of laches: "(1) unreasonable delay or lapse of time in
asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or
constructive, of the injury or wrong, and (4) prejudice to the other party").
Although the doctrine may be applicable to defeating Martin's claims for spousal
support and award of certain marital assets, we find that the reasonableness
standard set forth in Civ.R. 60(B) governs. Thus, having already determined
that the trial court did not abuse its discretion in finding that the motion was
filed within a reasonable amount of time, we overrule the second assignment of
error.
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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 be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
JAMES J. SWEENEY, J., CONCURS;MELODY J. STEWART, P.J., DISSENTS WITH SEPARATE OPINION
MELODY J. STEWART, P.J., DISSENTING:
I respectfully dissent from the majority's decision to affirm the trial court's
order granting relief from judgment because appellee failed to satisfy two of the
three mandatory prongs of the GTE test: she did not have a proper ground for
relief and did not timely file the motion.
A party's alleged fraud in failing to disclose a marital asset during a
divorce action is not a proper ground for relief from a default judgment under
Civ.R. 60(B)(3). See Brackins u. Brackins (Dec. 16, 1999), Cuyahoga App. No.
msr.A4 imilfllefl
-8-
75025. Appellee's argument merely challenges the correctness of the court's
decision - an incorrect use of Civ.R. 60(B) as a substitute for an appeal that
could have been brought from the divorce judgment. Id. at 10. And appellee's
attempt to state a ground under the catch-all provision of Civ.R. 60(B)(5) is
likewise unavailing because it does not state the ground on which relief should
be granted. Relief under Civ.R. 60(B)(5) should be granted only in extraordinary
situations where the interest of justice calls for relief. Adomeit v. Baltimore
(1974), 39 Ohio App.2d 97. Appellee's failure to give any reason warranting the
application of the catch-all provision constitutes a failure to establish one of the
prongs of a Civ.R. 60(B) motion for relief from judgment.
Appellee also failed to establish the "timely filed" prong of a motion for
relief from judgment because she waited 363 days from the date of the divorce
judgment to file the motion. A Civ.R. 60(B) motion can be untimely, even though
filed within a one-year time period allowed by the rule, if it is not filed within a
reasonable period of time after final judgment. What is reasonable under the
circumstances depends on the facts of each case. Colley v. Bazell (1980), 64 Ohio
St.2d 243, 249-250. When a movant is aware that there are grounds for relief
and delays filing the motion, the courts will require the movant to explain the
reasons for the delay. See, e.g., Kaczur v. Decara, Cuyahoga App. No. 67546,
1995-Ohio-3038 (Civ.R. 60(B) motion untimely filed when movant offered no
iv. G1 r n n an n n l. 1
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reasonable explanation for a nine-month delay in filing the motion); Drongowski
v. Salvatore, Cuyahoga App. No. 61081, 1992-Ohio-5027 (11-month delay in
filing Civ.R. 60(B) motion held untimely because movant failed to provide any
explanation). Appellant offered no reasonable explanation for her 363-day delay
in filing her motion for relief from judgment, despite admitting that she received
notice of the divorce judgment within days of that judgment being issued.
I would therefore find that appellee failed to meet all of the requirements
under GTE and that the court erred by granting her relief from judgment.
