[Cite as Christensen v. Christensen, 2016-Ohio-5623.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 103452

ROMIE M. CHRISTENSEN

PLAINTIFF-APPELLANT 

vs. 

JAMES DAVID CHRISTENSEN

DEFENDANT-APPELLEE 

JUDGMENT:

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Domestic Relations Division 

Case No. DR-14-350543 

BEFORE: Whitmore, J., Moore, P.J., and Hensal, J.* 

(*Sitting by assignment: Judges of the Ninth District Court of Appeals) 

RELEASED AND JOURNALIZED: September 1, 2016 
ATTORNEY FOR APPELLANT

Paul A. Daher 

Paul A. Daher & Associates 

700 W. St. Clair Ave. 

Suite 218 

Cleveland, Ohio 44113 

ATTORNEY FOR APPELLEE

Deanna L. Dipetta 

Zashin & Rich Co., L.P.A. 

950 Main Avenue, 4th Floor 

Cleveland, Ohio 44113
WHITMORE, J.: 

{¶1} Appellant, Romie Marianne Christensen (“Wife”), appeals from the July 30, 

2015 judgment of the Cuyahoga County Court of Common Pleas, Division of Domestic 

Relations, denying her motion for relief from judgment. This Court affirms. 

I 

{¶2} On January 28, 2015, the trial court granted a divorce to Wife and James 

David Christensen (“Husband”). The judgment entry incorporated a Shared Parenting 

Plan and a Separation and Property Settlement Agreement (“SPSA”) that was entered into 

by the parties on September 3, 2014, and January 21, 2015, respectively. The parties, 

with counsel, negotiated the terms of the SPSA over the course of three days, instead of 

commencing the scheduled trial. The record indicates that no direct appeal was taken 

from the January 28, 2015 judgment entry. 

{¶3} On April 14, 2015, Wife filed a motion for relief from judgment (oral 

argument requested), alleging that: (1) a mutual mistake occurred as to the equalization of 

the parties’ retirement accounts1

 (2) the cash value of the parties’ life insurance was not 

 1

We note that there is a discrepancy in Wife’s motion for relief from judgment 

and Wife’s appellate brief as to the manner in which the parties’ social security 

benefits should be off-set in order to achieve equalization of Wife’s OPERS. In the 

body of her motion for relief from judgment, Wife indicates that “to be truly equal, 

Wife’s theoretical social security benefits would need to be determined and 

quantified allowing for an off-set against her [S]tate benefit.” (Emphasis added.) 

However, in her appellate brief, Wife argues that she “is not receiving an offset from 

[Husband’s] social security benefits against her PERS benefits[.]” (Emphasis 

added.) Further, Wife’s motion for relief from judgment incorrectly states that the 
considered for purposes of equalizing the property settlement, and (3) a typographical 

error occurred as to the year Husband can claim one of the parties’ three children for tax 

dependency exemption purposes. Further, Wife cites Berlovan v. Berlovan, 9th Dist. 

Medina No. 13CA0052-M, 2015-Ohio-1245, ¶ 6, for the proposition that she entered into 

the SPSA “unwillingly or under duress[.]” 

{¶4} In his reply brief, Husband argues that Wife is not entitled to relief from 

judgment because: (1) the parties never mutually agreed upon an equal division of marital 

property, (2) there was no mutual mistake, but rather a unilateral mistake by Wife, (3) the 

settlement negotiations were not abnormal in any way, (4) Wife entered into the SPSA 

knowingly, willingly, and voluntarily, (5) the language in the SPSA is unambiguous as to 

the parties’ intent regarding the division of marital assets, (6) Wife is barred by the 

doctrine of invited error, and (7) Wife is barred by the doctrine of res judicata and 

collateral estoppel. 

{¶5} In denying Wife’s motion without a hearing, the trial court stated, in part: 

* * * 

[Wife] contends that an omission of a social security off-set was a mutual 

mistake by both counsel and that a typographical error occurred granting 

[Husband] the ability to claim the minor child as a tax dependent for 

exemption purposes as of 2014 when the year was supposed to state 2018. 

 

SPSA does not list any retirement accounts to remain in Husband’s name. Upon 

review, we note that the SPSA clearly states that “[t]he parties own the following 

Retirement, 401(k), IRAs & Stock Investment Accounts: * * * Husband; IRA with 

Amerifund. 
[Wife] argues that both issues should be resolved in favor of her position 

and should be corrected by way of applying Civ.R. 60(B). 

* * * 

The [c]ourt finds that [Wife’s] [m]otion for [r]elief from [j]udgment was 

filed in a timely manner in less than one year’s time after the journalization 

of the final judgment entry. However, [Wife] did not present a meritorious 

defense or claim and she is not entitled to relief under any of the grounds as 

stated in Civ.R. 60(B)(1) through (5). Civ.R. 60(B)(1) includes mistake, 

inadvertence, surprise or excusable neglect. [Wife’s] claim is that a mutual 

mistake occurred which resulted in the omission of a social security off-set. 

 As stated above, both parties were represented by legal counsel throughout 

the negotiations which spanned three days[.] * * * Furthermore, the parties 

and their respective legal counsel returned to court for the final hearing one 

week after the January 21, 2015 trial date. The [c]ourt finds that this 

one-week period of time was more than ample to allow the parties and their 

attorneys to review thoroughly the final documents presented to the [c]ourt 

at the final hearing on January 28, 2015. Therefore, a finding of mutual 

mistake is not applicable to this case. No other sections of Civ.R. 60(B) 

are applicable to this matter[,]including sections (2) through (5). 

[Wife] claims pursuant to Berlovan, 2015-Ohio-1245, that a party who 

entered into a separation agreement or shared parenting plan unwillingly or 

subject to duress may use Civ.R. 60(B) to seek relief. However, at the final 

hearing on January 28, 2015 of the parties to the case at hand, both testified 

in court that they had read the agreements, understood them and felt that 

they were fair, just, and equitable when it came to the division of property 

and to the allocation of support and parental rights and responsibilities. 

Furthermore, they testified that they signed the agreements voluntarily and 

of their respective free will. Furthermore, in the recent case of Richmond 

v. Evans, 8th Dist. Cuyahoga No. 101269, 2015-Ohio-870, “[* * *]the trial 

court did not adopt its understanding of the parties’ settlement agreement in 

the judgment entry of divorce; the trial court adopted the parties’ agreement 

itself.” Similarly, the [c]ourt here did not need to interpret or have a full 

understanding of the terms of the agreement that were drafted and reviewed 

over a period of approximately seven days. Instead, the [c]ourt simply 

adopted the agreement to which the parties testified was the fair, just and 

equitable resolution to their differences and their voluntary and willing 

agreement to address all outstanding issues to finalize the divorce action. 

* * * 
{¶6} Wife now appeals, raising two assignments of error. For ease of discussion, 

we address both assignments of error together. 

II 

Assignment of Error Number One 

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED 

[WIFE’S] MOTION [FOR] RELIEF FROM JUDGMENT (ORAL HEARING 

REQUESTED). 

Assignment of Error Number Two 

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED 

[WIFE’S] MOTION [FOR] RELIEF FROM JUDGMENT WITHOUT FIRST 

HOLDING AN EVIDENTIARY HEARING. 

{¶7} In her assignments of error, Wife argues that the trial court abused its 

discretion in denying her motion for relief from judgment: (1) because she met all three 

prongs set forth in GTE Automatic Elec. Inc., v. ARC Industries, Inc., 47 Ohio St.2d 146, 

(1976), paragraph two of the syllabus, and (2) without first holding an evidentiary 

hearing. We disagree. 

{¶8} In Thompson v. Dodson-Thompson, 8th Dist. Cuyahoga No. 90814, 

2008-Ohio-4710, ¶ 10-13, the Eighth District Court of Appeals set forth the law relating 

to Civ.R. 60(B) motions, stating: 

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.” Civ.R. 

60(B). 

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 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 Automatic Elec. Inc., 47 Ohio 

St.2d 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, 36 Ohio St.3d 17, 20 (1988); Svoboda v. Brunswick, 6 Ohio St.3d 348, 351 

(1983). 

These requirements must be shown by “operative facts” which demonstrate the movant’s 

entitlement to relief. Rose Chevrolet at 21; see, also, Coleman v. Cleveland School Dist. 

Bd. of Edn., 8th Dist. Cuyahoga Nos. 84274 and 84505, 2004-Ohio-5854, ¶ 79; Black v. 

Pheils, 6th Dist. Wood No. WD-03-045, 2004-Ohio-4270. Although a movant is not 

required to submit evidentiary material in support of the motion, a movant must do more 

than make bare allegations of entitlement to relief. Black at ¶ 68, citing Your Financial 

Community of Ohio, Inc. v. Emerick, 123 Ohio App.3d 601, 607, (10th Dist.1997); see, 

also, Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20 (1996). “Moreover, if the 

material submitted by the movant does not provide operative facts which demonstrate that 

relief is warranted, the court may deny the motion without conducting a hearing.” Black at 

¶ 68; McBroom v. McBroom, 6th Dist. Lucas No. L-03-1027, 2003-Ohio-5198, ¶ 39. 

The trial court has discretion in deciding a motion for relief from judgment under Civ.R. 

60(B) and discretion in determining whether to hold an evidentiary hearing on a motion 

submitted. Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987); Laatsch v. Laatsch, 6th Dist. 

Wood No. WD-05-101, 2006-Ohio-2923, ¶ 16. Therefore, its decision denying a Civ.R. 

60(B) motion, without holding an evidentiary hearing, will not be disturbed 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, 5 Ohio St.3d 217, 219 (1983). 

{¶9} Further, in Thompson, the Eighth District addressed a factually similar 

situation to the matter at hand. Mr. Thompson challenged the trial court’s decision 
denying his motion for relief from judgment without first holding a hearing. Id. at ¶ 1. 

He argued that “the terms of the separation agreement incorporated into the decree were 

unfair, unreasonable, and inconsistent,” even though, after two days of negotiations, he 

agreed to “the division of marital property and spousal support.” Id. at ¶ 1, 2. Mr. 

Thompson also claimed that he signed the separation agreement “under duress and 

extreme exasperation.” Id. at ¶ 15. In determining that the appeal had “no merit,” the 

Court stated that “[Mr. Thompson] failed to allege operative facts that justified relief 

under [Civ.R. 60(B)]”, and his arguments “could have been raised on a direct appeal.” 

Id. at ¶ 1, 15, 16. The Court reasoned that “a motion for relief from judgment cannot be 

used as a substitute for appeal, even when the Civ.R. 60(B) motion is filed within the 

period for a timely appeal.” Id. at ¶ 16. See also Fairbanks Capital Corp. v. Richards, 

8th Dist. Cuyahoga No. 86173, 2006-Ohio-102, ¶ 5; Kelley v. Lane, 103 Ohio St.3d 432, 

2004-Ohio-5582, ¶ 3; and Wilson v. Wilson, 8th Dist. Cuyahoga No. 86817, 

2006-Ohio-4261, ¶ 21. 

{¶10} Here, although Wife’s motion for relief from judgment indicates that “the 

social security benefit off-set was inadvertently omitted from the [SPSA],” and “[t]he 

omission * * * was a mutual mistake by both counsel,” Wife did not specifically identify 

the subsection of Civ.R. 60(B) from which she sought relief. However, in its judgment 

entry, the trial court analyzed Wife’s claim pursuant to Civ.R. 60(B)(1), which allows for 

the vacation of a final judgment due to “mistake, inadvertence, surprise or excusable 

neglect.” See Civ.R. 60(B)(1). 
{¶11} Additionally, Wife’s affidavit fails to allege operative facts that demonstrate 

a mutual mistake as to the voluntary signing of the SPSA by both parties, and, that 

pursuant to Berlovan, 2015-Ohio-1245, at ¶ 6, Wife signed the SPSA unwillingly or 

under duress. In her affidavit, Wife averred that “there is not an equal allocation of 

retirement benefits” because (1) she was responsible for the care and feeding of the 

parties’ three minor children during the three-day period of time that the SPSA 

negotiations took place, (2) numerous drafts of the SPSA circulated before the final 

document was signed, and (3) the negotiations were “geared” toward an equal division of 

marital property. However, these averments do not support Wife’s contention that a 

mutual mistake occurred in the signing of the SPSA, or that either party intended for an 

alternate division of the marital property. Also, Wife fails to include any operative facts 

as to her Berlovan argument that she acted unwillingly or under duress. Finally, Wife’s 

affidavit completely fails to address the alleged issue regarding the 2014 tax dependency 

exemption. 

{¶12} In its opinion, the trial court suggests that a one-week period of time 

between the signing of the SPSA and the final hearing provided ample opportunity for 

both parties to thoroughly review the SPSA and voice their concerns, if any, regarding the 

division of property. We agree. Instead of addressing any alleged issues at the time of 

the final divorce hearing, Wife waited approximately two months to file a motion for 

relief from judgment. Further, and more importantly, Wife did not file a direct appeal 
regarding the alleged inequitable division of the parties’ marital property. See Wilson, 

2006-Ohio-4261, at ¶ 21-22, stating: 

The Ohio Supreme Court has held that a “Civ.R. 60(B) motion for relief from judgment 

cannot be used as a substitute for a timely appeal or as a means to extend the time for 

perfecting an appeal from the original judgment.” Key v. Mitchell, 81 Ohio St.3d 89, 

90-91 (1998)[.] * * * 

Although we recognize that Wife filed her Civ.R. 60(B) motion prior to the expiration of 

the time allowed for filing an appeal, she failed to file a direct appeal to preserve her right 

to challenge the merits of the underlying judgment. Civ.R. 60(B) explicitly provides that 

the filing of a motion under this subdivision does not affect the finality of a judgment or 

suspend its operation. Therefore, if Wife wished to challenge the overall judgment, she 

was required to file a timely direct appeal. Because she did not do so, we cannot address 

the merits of her argument that the final divorce decree contains an inequitable division of 

marital assets. 

{¶13} Therefore, because (1) Wife could have raised her arguments on direct 

appeal, and (2) Wife failed to allege operative facts justifying relief under Civ.R. 

60(B)(1), or any of the grounds set forth in Civ.R. 60(B)(1)-(5), the trial court did not 

abuse its discretion in denying Wife’s motion for relief from judgment without holding a 

hearing. 

{¶14} Wife’s first and second assignments of error are overruled. 

III 

{¶15} Wife’s assignments of error are overruled. The judgment of the Cuyahoga 

County Court of Common Pleas, Division of Domestic Relations is 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 Rule 27 of 

the Rules of Appellate Procedure. 

BETH WHITMORE, JUDGE 

CARLA MOORE, P.J., and 

JENNIFER HENSAL, J., CONCUR* 

*(Whitmore, Moore and Hensal, Judges, 

of the Ninth District, sitting by assignment 

in the Eighth Appellate District.)