[Cite as Rodeno v. Mezenski, 2022-Ohio-1176.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

PETER RODENO, EXECUTOR OF THE :

ESTATE OF DANIEL A. RODENO,

No. 111030

Plaintiff-Appellee, :

v. :

ALAN MEZENSKI, GUARDIAN OF :

KAREN L. RODENO,

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: April 7, 2022

Civil Appeal from the Cuyahoga County Common Pleas Court

Domestic Relations Division 

Case No. DR-18-372371

Appearances:

Eloff and Wilson, L.L.P., Kathryn Gonser Eloff and James 

Matthew Wilson; Milano Attorneys & Counselors at Law, 

Jay Milano and Kate Pruchnicki, for appellee.

Mark A. Ziccarelli, for appellant.

EILEEN A. GALLAGHER, J.:

In this accelerated appeal, appellant Alan Mezenski, guardian of 

Karen L. Rodeno, appeals from the trial court’s order denying his motion for relief 
from judgment pursuant to Civ.R. 60(B)(5). Mezenski sought to vacate the trial 

court’s final judgment entry of divorce, which granted a divorce between Daniel

Rodeno (“Daniel”) and Mezenski’s sister, Karen Rodeno (“Karen”), divided assets 

and liabilities and ordered the payment of spousal support to Karen. Mezenski

claimed that Karen was entitled to relief from judgment under Civ.R. 60(B)(5) 

because (1) Karen was incompetent at the time of the divorce decree and (2) it was 

“no longer equitable to enforce” the divorce decree. Mezenski contends that the trial 

court abused its discretion in failing to appoint a guardian ad litem to protect 

Karen’s interests during the divorce proceedings and in denying his motion without 

a hearing because the motion set forth sufficient operative facts entitling Karen to 

relief from judgment under Civ.R. 60(B)(5). 

For the reasons that follow, we affirm. 

Procedural and Factual Background

Daniel and Karen were married on October 8, 1993. They had no 

children together. On June 15, 2018, Daniel filed a complaint for divorce, alleging 

that the couple was incompatible. Karen was personally served with a copy of the 

complaint, but she did not file an answer and she did not appear for the divorce 

hearing held on August 24, 2018. Following the hearing, the trial court issued a 

divorce decree (the “divorce decree”), granting the parties a divorce based on 

incompatibility, dividing the parties’ “separate property, marital property and debts 

acquired during the marriage” and ordering Daniel to pay Karen $3,000 a month in 

spousal support for 48 months. 
Daniel was awarded the parties’ interest in two residential properties 

located in Westlake, Ohio and Berea, Ohio and was assigned the debt associated with 

those properties, $321,888 and $93,446.32, respectively. He was also awarded 

savings and checking accounts valued at $12,000, an IRA valued at $567,410.87, an 

investment account valued at $93,817.87 and a 2011 Mercedes E350 valued at 

$18,000. Karen was awarded a checking account valued at $125, personal jewelry 

valued at $2,000, an IRA valued at $80,962.73 and an investment account valued 

at $2,200. Karen also retained a monthly social security benefit of $1,569.10 and a 

monthly pension benefit of $419.96. 

The trial court found that the division of property, “though not equal,” 

was “equitable” because the marriage was “a second marriage for both” parties and 

“a significant portion” of Daniel’s IRA was “premarital.” The trial court’s August 24, 

2018 journal entry, at the conclusion of the section addressing spousal support, 

states that “[t]he [c]ourt shall not retain jurisdiction to modify this order.” 

Daniel died on May 28, 2020. On October 1, 2020, the probate court 

appointed Mezenski guardian of Karen’s person and estate in In the Matter of the 

Guardianship of Karen Rodeno, Cuyahoga P.C. No. 2020GRD254156 (the “probate 

case”). 

On May 25, 2021 — more than two-and-one-half years after the 

parties’ divorce — Mezenski filed a “motion for relief from judgment of August 24, 

2018 and request for full evidentiary hearing.” Mezenski requested that the trial 

court vacate the divorce decree and “grant [Karen] relief from the division of assets 
and liabilities and the non-payment [sic] of spousal support.” Mezenski claimed 

that Karen’s incompetence, combined with an inequitable property division, the 

payment of inadequate spousal support, Karen’s failure to enter an appearance in 

the divorce proceeding, Daniel’s “knowledge of her incompetence, yet proceeding to 

a divorce” and the trial court’s failure to appoint a guardian ad litem to protect her 

interests pursuant to Civ.R. 17(B) constituted “any other reason justifying relief from 

judgment” under Civ.R. 60(B)(5). 

Mezenski asserted that, at the time of the divorce proceedings, Karen 

was 67 years old and had been living in an assisted living facility for several years. 

He claimed that “medical evidence,” including two “expert evaluations,” established 

that Karen had been diagnosed with Parkinson’s Disease with dementia, had severe 

cognitive and physical impairment and was unable to care for herself or manage her 

finances and property. Mezenski further asserted that the division of assets and 

liabilities set forth in the divorce decree was “no longer prospectively equitable”

because (1) the divorce decree provided a “minimal amount of spousal support of 

only four (4) years on a twenty-five (25) year marriage,” (2) the Westlake, Ohio 

property had “a value in 2018 according to the Cuyahoga County website of over 

$657,000.00 * * * leaving equity of approximately $330,000.00, which was 

retained by [Daniel],” (3) the Berea, Ohio property awarded to Daniel had a “value 

of over $115,000.00” according to “[t]he Cuyahoga County’s website,” “with only 

$93,000.00 owed” and (4) “[Daniel] retained the savings account, checking 

account, IRA, and a motor vehicle, worth in excess of $691,000.00, whereas [the 
value of the] assets that [Karen] retained was a little over $85,000.00.” Mezenski 

also alleged that Daniel had “an ownership interest in a very successful business” 

that was “not disclosed at the time of the divorce.” 

Mezenski claimed that the lengthy delay in filing the motion was 

because he had “only recently” acquired “evidence that [Karen] had an expert 

evaluation completed on December 7, 2017 indicating her incompetence” and due 

to delays in opening an estate following Daniel’s death “in which to initiate litigation 

concerning this matter.” The motion was served on appellee Peter Rodeno, executor 

of the estate of Daniel A. Rodeno (“Peter”), on or about June 14, 2021.

On July 15, 2021, Mezenski filed an “amended motion” for relief from 

judgment in which he submitted four exhibits in support of his motion: (1) a copy

of the August 24, 2018 divorce decree, (2) a copy of a statement of expert evaluation 

(Probate Court Form 17.1) executed by Michael J. Dobrovich, D.O., relating to an 

evaluation of Karen conducted on July 23, 2020, (3) a copy of the October 1, 2020 

magistrate’s decision and “judgment entry granting guardianship” in the probate 

case and (4) a copy of a July 17, 2020 letter from Mezenski’s counsel to Dr. Hubert 

Fernandez, indicating that he had been retained to file a guardianship for Karen and 

requesting that he complete and sign a statement of expert evaluation (Probate 

Court Form 17.1) for Karen, and a copy of a statement of expert evaluation, signed 

by an unidentified evaluator on September 3, 2020, purportedly relating to an 

evaluation of Karen conducted at the Cleveland Clinic on December 7, 2017. 
Peter opposed the motion on the grounds that Mezenski could not 

satisfy the requirements for relief under Civ.R. 60(B). Peter argued that the motion 

should be denied because (1) Mezenski’s motion was not supported by “sworn 

allegations of operative fact” or operative facts that were otherwise “in a form that 

meets evidentiary standards,” (2) Mezenski had not established any grounds for 

relief under Civ.R. 60(B), (3) Mezenski’s motion was not filed within a reasonable 

time and (4) Mezenski had failed to establish that he has a meritorious claim or 

defense because (i) the divorce proceedings abated upon Daniel’s death (and, as 

such, the trial court lacked jurisdiction to do anything other than enforce the rights 

fixed by the divorce decree pursuant to R.C. 2101.24 and 3105.011), (ii) the trial court 

lacked jurisdiction to modify the spousal support award or property division

pursuant to R.C. 3105.18 and 3105.171 and (iii) any claims against Daniel’s estate 

would be time-barred under R.C. 2117.06. 

On October 28, 2021, the trial court denied the motion, indicating 

that it was “constrained” by the holdings in Morris v. Morris, 148 Ohio St.3d 138, 

2016-Ohio-5002, 69 N.E.3d 664, and Walsh v. Walsh, 157 Ohio St.3d 322, 2019-

Ohio-3723, 136 N.E.3d 460. Specifically, the trial court held that because the 

divorce decree did not reserve jurisdiction to modify spousal support or the property 

division and because the motion was filed “almost three years after the decree,” the 

court was “without jurisdiction to grant the relief sought.” 

Mezenski appealed, raising the following three assignments of error 

for review:
Assignment of Error No. 1:

The trial court abused its discretion by failing to grant appellant’s 

motion for relief from judgment without holding a hearing where 

appellant has alleged operative facts warranting relief under Civ.R. 

60(B)(5).

Assignment of Error No. 2:

The trial court abused its discretion by failing to appoint a guardian ad 

litem for the protection of appellant pursuant to Ohio Civ.R. 17(B), as 

she was an incompetent person. 

Assignment of Error No. 3:

The trial court abused its discretion by dismissing appellant’s motion 

for relief from judgment based on its conclusion that it was without 

jurisdiction to grant the relief requested. 

Mezenski’s assignments of error are interrelated. Accordingly, we 

address them together.

Law and Analysis

Pursuant to Civ.R. 60(B), “[o]n motion and upon such terms as are 

just,” a trial court “may relieve a party or his legal representative 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 

(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. 

To prevail on a motion for relief from judgment, the moving party 

must demonstrate that: (1) the party has a meritorious defense or claim to present 
if the relief is granted; (2) the party is entitled to relief under one of the grounds 

stated in Civ.R. 60(B)(1)-(5) and (3) the motion is made within a reasonable time. 

Internatl. Total Servs. v. Estate of Nichols, 8th Dist. Cuyahoga No. 107751, 2019-

Ohio-4572, ¶ 7, citing GTE Automatic Elec. v. ARC Industries, 47 Ohio St.2d 146, 

351 N.E.2d 113 (1976), paragraph two of the syllabus. 

Civ.R. 60(B) “strikes a balance between the finality of judgments and 

a perfect result ‘by vesting the courts with broad, but not unlimited authority to set 

aside judgments.”’ Ouellette v. Ouellette, 2020-Ohio-705, 152 N.E.3d 528, ¶ 10 (6th

Dist.), quoting Knapp v. Knapp, 24 Ohio St.3d 141, 145, 493 N.E.2d 1353 (1986). 

The trial court has discretion both in deciding a motion for relief from judgment 

under Civ.R. 60(B) and in determining whether to hold an evidentiary hearing on

the motion. Kostoglou v. Fortuna, 8th Dist. Cuyahoga No. 107937, 2019-Ohio-5116, 

¶ 21, citing Williams v. Wilson-Walker, 8th Dist. Cuyahoga No. 95392, 2011-Ohio1805, ¶ 7; GMAC Mtge., LLC v. Coleff, 8th Dist. Cuyahoga No. 98917, 2013-Ohio2462, ¶ 10. As such, we review a trial court’s ruling on a Civ.R. 60(B) motion for 

abuse of discretion. Internatl. Total Servs. at ¶ 6, citing Bank of N.Y. v. Elliot, 8th 

Dist. Cuyahoga Nos. 97506 and 98179, 2012-Ohio-5285, ¶ 25. A trial court abuses 

its discretion where its decision is unreasonable, arbitrary or unconscionable. 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

A decision is unreasonable when “no sound reasoning process”

supports that decision. AAAA Ents. v. River Place Community Urban 

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). An abuse of 
discretion also occurs when a court “‘applies the wrong legal standard, misapplies 

the correct legal standard, or relies on clearly erroneous findings of fact.’”

Franciscan Communities, Inc. v. Rice, 8th Dist. Cuyahoga No. 109889, 2021-Ohio1729, ¶ 33, quoting Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, 

892 N.E.2d 454, ¶ 15 (8th Dist.); see also Ockunzzi v. Smith, 8th Dist. Cuyahoga No. 

102347, 2015-Ohio-2708, ¶ 9 (‘“Abuse of discretion’ is a term of art, describing a 

judgment neither comporting with the record, nor reason.”); Huffman v. Hair 

Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985) (‘“In order to have an 

“abuse” in reaching such determination, the result must be so palpably and grossly 

violative of fact and logic that it evidences not the exercise of will but perversity of 

will, not the exercise of judgment but defiance thereof, not the exercise of reason but 

rather of passion or bias.’”), quoting State v. Jenkins, 15 Ohio St.3d 164, 222, 473 

N.E.2d 264 (1984).

Mezenski argues that the trial court abused its discretion in denying 

his motion for relief from judgment without a hearing because his motion and 

supporting materials set forth sufficient operative facts entitling him to relief from 

judgment under Civ.R. 60(B)(5).

The trial court denied Mezenski’s motion on the ground that it lacked 

jurisdiction “to grant the relief sought,” citing the Ohio Supreme Court’s decisions 

in Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664, and Walsh, 157 

Ohio St.3d 322, 2019-Ohio-3723, 136 N.E.3d 460. 
In Morris, the Ohio Supreme Court held that “a trial court does not

have jurisdiction under Civ.R. 60(B) to vacate or modify an award of spousal

support in a decree of divorce or dissolution when the decree does not contain a

reservation of jurisdiction to modify the award of * * * spousal support pursuant

to R.C. 3105.18(E).”

1

 Id. at ¶ 63. In that case, the appellant filed a motion for relief

from judgment pursuant to Civ.R. 60(B)(4) and/or (5) more than 11 years after the

parties’ dissolution was finalized. The dissolution decree incorporated a separation

agreement that required appellant to pay his ex-wife $1,300 a month in spousal

support for her lifetime. The separation agreement further provided that “[t]he

[c]ourt shall not have continuing jurisdiction on this subject.” Appellant requested

that the trial court vacate the spousal support award based on the fact that

appellant’s annual income had sharply decreased from about $100,000 at the time

of the dissolution to less than $4,000. Id. at ¶ 4-8. 

1 R.C. 3105.18(E) states, in relevant part: 

[I]f a continuing order for periodic payments of money as spousal support is 

entered in a divorce or dissolution of marriage action that is determined on 

or after January 1, 1991, the court that enters the decree of divorce or 

dissolution of marriage does not have jurisdiction to modify the amount or 

terms of the alimony or spousal support unless the court determines that the 

circumstances of either party have changed and unless one of the following 

applies:

(1) In the case of a divorce, the decree or a separation agreement of the 

parties to the divorce that is incorporated into the decree contains a 

provision specifically authorizing the court to modify the amount or 

terms of alimony or spousal support.

(2) In the case of a dissolution of marriage, the separation agreement 

that is approved by the court and incorporated into the decree 

contains a provision specifically authorizing the court to modify the 

amount or terms of alimony or spousal support.
The court held that “Civ.R. 60(B), a procedural rule, cannot override

the substantive law of R.C. 3105.18” and, therefore, “may not operate to vacate an

award of spousal support, because the only proper mechanism to modify such an

award is the substantive law — i.e., R.C. 3105.18.” Id. at ¶ 55, 57. The court

explained:

In R.C. 3105.18(E), the General Assembly has established the

limits of a trial court’s jurisdiction to modify an award of spousal

support. And a party’s request for modification falls within those

statutory limits only if the parties agree or the court orders that

jurisdiction be reserved. In other words, the trial court must first

determine whether the decree of divorce or dissolution contains a

reservation of jurisdiction. If the trial court lacks jurisdiction to

modify, then the inquiry of the court ends there. To permit a trial court

to exercise jurisdiction on the authority of Civ.R. 60(B) in the absence

of a reservation of jurisdiction would make the force of the procedural

rule greater in scope than the substantive right the General Assembly

established in R.C. 3105.18(E). Because Civ.R. 60(B) is a procedural

rule, it cannot override the substantive law of R.C. 3105.18(E). See

Ohio Constitution, Article IV, Section 5(B).

* * * 

In the case before us today, jurisdiction to modify the decree was

not reserved in the trial court. Therefore, if * * * the trial court

determined that appellant was entitled to relief under Civ.R. 60(B),

then the court would be required to vacate the decree of dissolution and

restore the marriage, which was terminated nearly 16 years ago. This

would be antithetical to our principle ofthe finality of judgments, which

ensures “certainty in the law and public confidence in the system's

ability to resolve disputes.” * * *

It has been nearly 28 years since this court announced its holding

in [Crouser v. Crouser, 39 Ohio St.3d 177, 529 N.E.2d 1251 (1988)] that

Civ.R. 60(B), a procedural rule, cannot override the substantive law of

R.C. 3105.18. Since that time, the General Assembly has not amended

R.C. 3105.18(E) to confer upon the trial court jurisdiction to modify a

continuing obligation of spousal support when there is fraud, mistake,

or misrepresentation. Perhaps the General Assembly is not inclined to
do so because it knows that under the statutory scheme that it has

enacted, in an action for divorce, a trial court always has discretionary

authority to order the inclusion of a modification provision, even when

the parties have reached their own full or partial agreement * * *.

Absent legislative action, the authority of Crouser stands.

Id. at ¶ 57, 59, 62.

In Walsh, 157 Ohio St.3d 322, 2019-Ohio-3723, 136 N.E.3d 460, the

Ohio Supreme Court considered the impact of R.C. 3105.171(I) on a trial court’s 

ability to grant Civ.R. 60(B) relief with respect to the division of property set forth 

in a final divorce decree. R.C. 3105.171(I) states that a property division made in a 

divorce decree “is not subject to future modification by the court except upon the 

express written consent or agreement to the modification by both spouses.” The 

Walsh Court held that “[t]hough Morris dealt with spousal support, rather than a 

property distribution, the same principle applies: Civ.R. 60(B) cannot be used to 

alter the statutory requirements for the modification of a decree. Because R.C. 

3105.171(I) does not permit modification absent the consent of both parties, Civ.R. 

60(B) cannot provide a workaround.” Walsh at ¶ 23.

In Walsh, the trial court granted relief from judgment under Civ.R. 

60(B) to modify a divorce decree that divided pension benefits even though both 

parties had not agreed to the modification. In that case, the parties’ divorce decree, 

which adopted a consent judgment of divorce, provided that the wife would receive 

a share of the husband’s military pension based upon a marriage term of six years, 

representing the period of time the parties had been together during the husband’s 

military service. Id. at ¶ 1-5. The decree further provided that a consulting firm 
would prepare a qualified domestic relations order (“QDRO”) to implement the 

pension division and that the trial court would retain jurisdiction over the QDRO. 

Id. at ¶ 4-5. When the consultant attempted to draft the QDRO, it determined that 

it could not draft a QDRO under which the wife would receive direct pension 

payments from the military because the divorce decree did not specify the wife’s

share of the husband’s pension in percentage terms and because it did not comply 

with the military’s “10/10 rule.” Under the “10/10 rule,” in order for a portion of a 

service member’s pension benefits to be directly distributed to a former spouse, the 

marriage must have lasted at least ten years and the service member must have 

provided military service during those ten years. Id. at ¶ 5-8. 

Approximately two years after the divorce decree was finalized, the 

wife filed a motion for relief from judgment pursuant to Civ.R. 60(B)(4) and (5), 

requesting that the court modify the divorce decree to reflect the percentage of the 

husband’s pension to which she was entitled and “the parties’ actual date of marriage 

and date of divorce, rather than the agreed upon dates which do not meet the 10/10 

rule.” Id. at ¶ 9. The trial court granted the wife’s motion for Civ.R. 60(B) relief and 

made two modifications to the divorce decree. The trial court stated that the 

marriage term was ten years and that the wife was entitled to receive 15 percent of 

the husband’s retirement benefits each month. Id. at ¶ 12. The husband appealed,

and the court of appeals affirmed. Id. at ¶ 12-13.

The Ohio Supreme Court reversed the trial court’s judgment, 

concluding that “the trial court lacked jurisdiction to modify the length of the
marriage stated in the divorce decree.” Id. at ¶ 16. The court held that by changing 

the length of the marriage, the trial court had modified the divorce decree with 

respect to a distribution of property. Because both parties did not consent to that 

modification, the trial court had no authority to order the change pursuant to R.C. 

3105.171(I). The court that stated Civ.R. 60(B) could not “provide a workaround” to 

“alter the statutory requirements for modification of a decree.” Id. at ¶ 20, 23. The 

court explained: 

In addition to the Civ.R. 60(B) requirements for modification, 

the divorce and dissolution statutes contain certain statutory 

restrictions that limit the authority of a trial court to modify a final 

decree. See, e.g., R.C. 3105.171(I); R.C. 3105.18(E); R.C. 3105.63(A) 

and (C). Retirement benefits earned during the course of a marriage 

constitute marital property. * * * With respect to a modification of a 

property division, R.C. 3105.171(I) provides: “A division or 

disbursement of property or a distributive award made under this 

section is not subject to future modification by the court except upon 

the express written consent or agreement to the modification by both 

spouses.” (Emphasis added.) * * * 

We have examined the interplay between Civ.R. 60(B) and the 

statutory provisions that relate to modification in a number of cases, 

most recently in Morris v. Morris, 148 Ohio St.3d 138, 2016-Ohio5002, 69 N.E.3d 664. * * * 

Though Morris dealt with spousal support, rather than a 

property distribution, the same principle applies: Civ.R. 60(B) cannot 

be used to alter the statutory requirements for the modification of a 

decree. Because R.C. 3105.171(I) does not permit modification absent 

the consent of both parties, Civ.R. 60(B) cannot provide a workaround.

* * * [W]e think it evident that the trial court’s order was a modification 

to the division of property and thus was required to comply with R.C. 

3105.171(I). 
Walsh at ¶ 19, 21, 23, 26;

2 see also Williams v. Williams, 1st Dist. Hamilton No. C210331, 2022-Ohio-599, ¶ 12-18 (where husband did not consent to wife’s requested 

changes to divorce decree, trial court had no authority, pursuant to R.C. 3105.171(I), 

to modify the divorce decree; wife could not use Civ.R. 60(B) to “circumvent” R.C. 

3105.171(I)); Ruple v. Ruple, 11th Dist. Lake No. 2021-L-027, 2021-Ohio-2884, ¶ 12 

(because the parties did not authorize trial court to modify separation agreement 

incorporated into dissolution decree, modification was precluded by statute, and 

2 The Morris Court further held that, “in accordance with our precedents,” “if the 

parties’ separation agreement, incorporated into a decree of dissolution, reserves the 

jurisdiction of the court to modify, a party is limited to seeking relief from judgment under 

Civ.R. 60(B)(1), (2), or (3); a litigant may not seek relief from the decree under Civ.R. 

60(B)(4) or (5).” Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664, at ¶ 63, 

citing Knapp, 24 Ohio St.3d 141, 493 N.E.2d 1353, at paragraph two of the syllabus, and

In re Whitman, 81 Ohio St.3d 239, 245, 690 N.E.2d 535 (1998). Similarly in Walsh, the 

court held:

Our caselaw makes clear that even when a decree reserves jurisdiction for the 

court to modify the parties’ agreement, a court may not grant relief under 

Civ.R. 60(B)(4) or (5); rather it is limited to granting relief under Civ.R. 

60(B)(1), (2), and (3) — all of which require the motion to be filed within one 

year from the date of the judgment. * * * We have explained that a contrary 

rule would “relieve a litigant from the consequences of his voluntary, 

deliberate choice” to enter into an agreement. Knapp v. Knapp, 24 Ohio 

St.3d 141, 493 N.E.2d 1353 (1986), paragraph two of the syllabus; see Morris

at ¶ 38-41. Further, allowing such motions would be “antithetical to our 

principle of the finality of judgments,” Id. at ¶ 59 and encourage mischief by 

allowing those with the resources to do so “to bury their ex-spouses in a 

mountain of filings,” Id. at ¶ 60. Thus, even if we were to conclude that R.C. 

3105.171(I) did not apply, the trial court still lacked authority to modify the 

divorce decree.

Walsh at ¶ 28. However, the Walsh Court noted that after Whitman was decided, R.C. 

3107.171(I) was amended to require “express written consent or agreement to the 

modification by both spouses.” (Emphasis added.) Because the issue was not before the 

court, it “express[ed] no opinion * * * as to whether a reservation of jurisdiction would be a 

sufficient basis to allow a court to modify a property division via Civ.R. 60(B)(1), (2), or (3) 

under the current statutory scheme.” Walsh at ¶ 28, fn. 3.
Civ.R. 60(B) could not “be used as ‘a workaround’”). But see Quesinberry v. 

Quesinberry, 2d Dist. Montgomery No. 29192, 2022-Ohio-635, ¶ 17-47 

(distinguishing Walsh on the ground that it “did not involve an attempt to use Civ.R. 

60(B) to vacate an entire divorce or dissolution decree” and holding that the entire 

dissolution decree was “subject to being vacated” under Civ.R. 60(B)(1) where the 

parties’ mutual mistake regarding wife’s entitlement to spousal and child support 

“means that there was no meeting of the minds and no valid contract on which to 

base the dissolution decree”); Ouellette, 2020-Ohio-705, 152 N.E.3d 528, at ¶ 8, 32-

33, 44 (finding “no prohibition” within R.C. 3105.171(I) “to a court’s vacation of the 

entire property order or the decree, as appropriate under Civ.R. 60(B)(1), (2), or 

(3),” and holding that where a party “demonstrates facts that challenge the very 

formation of a consent decree, a motion for relief under Civ.R. 60(B)(1) is 

appropriate” and trial court had jurisdiction to consider Civ.R. 60(B)(1) motion 

requesting that the trial court vacate, rather than modify, property order or decree, 

“even if the remedy of modification was improperly ordered”).

Mezenski argued below that because Karen was incompetent at the 

time of the divorce decree and because “it is no longer equitable to enforce the 

judgment entry of divorce,” the judgment entry of divorce “must be vacated so this 

matter may be heard and decided upon its merits.” Mezenski did not contend that 

divorce was not warranted based on the parties’ incompatibility, as found by the trial 

court. He challenged only the trial court’s division of property and spousal support 
award and sought to have the divorce decree vacated so that a more equitable 

property division and spousal support award could be entered. 

Mezenski argues that Morris and Walsh do not apply here because in 

those cases, “the parties had entered into an agreement” and “there were no 

allegations that one party, who was unrepresented, was incompetent at the time the 

divorce was granted.” However, nothing in either of those cases appears to limit 

their holdings that Civ.R. 60(B) cannot be used to circumvent the statutory 

requirements of R.C. 3105.18(E) and 3105.171(I) to instances in which the divorce 

decree or dissolution decree incorporated an agreement of the parties. In each of 

those cases, the court held that a trial court had no “authority” or “jurisdiction” to 

modify a spousal support award or property division in a divorce decree or 

dissolution decree without compliance with the applicable statute, R.C. 3105.18(E)

or 3105.171(I), i.e., absent a reservation of jurisdiction in the decree or the express

written consent or agreement to the modification by both spouses.

In this case, as in Morris and Walsh, there was no reservation of 

jurisdiction in the divorce decree and no express written consent or agreement to 

the modification by both spouses. Indeed, the divorce decree not only does not 

contain a reservation of jurisdiction but expressly states, with respect to the spousal 

support award, that “[t]he [c]ourt shall not retain jurisdiction to modify this order.” 

Further, even if Morris and Walsh were distinguishable from this case based on the 

nature of the relief requested — i.e., requesting that the divorce decree be vacated in 
its entirety — or the circumstances giving rise to the claim for relief — i.e., Karen’s 

alleged incompetency — we would still find no reversible error here. 

This is not a case in which the trial court could grant the relief sought 

by Mezenski, i.e., rehearing the case on the merits and ordering a more “equitable” 

property division and spousal support award, by granting his Civ.R. 60(B) motion. 

Even if Morris and Walsh did not preclude the trial court from vacating the divorce 

decree in its entirety based on Karen’s alleged incompetency, this is not a case that 

could then be “decided on its merits,” i.e., the trial court could not have considered 

new evidence and entered a new divorce decree (setting forth a different property 

division and spousal support award), if the trial court were to have vacated the 

August 24, 2018 divorce decree under Civ.R. 60(B), because Daniel is now deceased. 

Daniel died on May 28, 2020, nearly a year before Mezenski filed his 

Civ.R. 60(B) motion. “It is axiomatic that an action for divorce abates and cannot 

be revived when one of the parties thereto dies.” Diemer v. Diemer, 99 Ohio App.3d 

54, 59, 649 N.E.2d 1285 (8th Dist.1994); see also Durgin v. Durgin, 8th Dist. 

Cuyahoga No. 98888, 2013-Ohio-1897, ¶ 13 (“‘[T]he death of a party prior to 

adjudication of the issues in a pending divorce case causes the action to abate and 

ends any jurisdiction that a judge has over the case except to dismiss it.”’), quoting

Concepcion v. Concepcion, 131 Ohio App.3d 271, 275-276, 722 N.E.2d 176 (3d 

Dist.1999), citing Coffman v. Finney, 65 Ohio St. 61, 61 N.E. 155 (1901); State ex rel. 

Litty v. Leskovyansky, 77 Ohio St.3d 97, 99-102, 671 N.E.2d 236 (1996) (granting 

wife a writ of prohibition to prevent domestic relations judge from continuing with 
further proceedings in divorce case after husband’s death on the basis that 

husband’s death ended any jurisdiction that the court had over the divorce case 

except to dismiss it); Porter v. Lerch, 129 Ohio St. 47, 56, 193 N.E.766 (1934) 

(“[W]here one or both parties to a divorce action die before a final decree of divorce, 

the action abates and there can be no revival. Circumstances have accomplished the 

object sought.”). 

While the trial court retained jurisdiction, following Daniel’s death, to 

“enforce” the rights and obligations “already fixed” by the divorce decree, it lacked 

jurisdiction to order or impose new rights or obligations. See, e.g., Durgin at ¶ 16-

17 (“while an action termed ‘personal,’ such as for divorce or for determination and 

order of an alimony award, abated upon the death of one party to the action, an 

action that sought to enforce fixed rights and liabilities, such as an action to enforce 

alimony already awarded, survives the death of that party”) (emphasis deleted),

citing Coffman, 65 Ohio St. 61, 61 N.E. 155; see also Diemer at 59-63 (where divorce 

action abated upon plaintiff’s death before the domestic relations court determined 

any issues, probate court, rather than domestic relations court, possessed 

jurisdiction to determine rights and liabilities of parties with respect to antenuptial 

agreement). 

Because Daniel had died, if the August 24, 2018 divorce decree were 

to be vacated, the trial court could no longer exercise jurisdiction over the divorce 

action and grant the relief — a new property division and spousal support award —

sought by Mezenski. Accordingly, we cannot say that the trial court abused its 
discretion in denying Mezenski’s Civ.R. 60(B) motion on the ground that it was 

“without jurisdiction to grant the relief sought.” 

Furthermore, even if the trial court could otherwise grant Mezenski 

the relief he requested, we would still find that the trial court did not abuse its 

discretion in denying Mezenski’s motion for relief from judgment because he did not 

present sufficient allegations of operative facts in his motion and supporting 

materials establishing grounds for relief under Civ.R. 60(B)(5) or his entitlement to 

an evidentiary hearing on the motion. 

Civ.R. 60(B)(5) is a “catchall provision” that reflects the “inherent 

power of a court to relieve a person from the unjust operation of a judgment.” 

Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 448 N.E.2d 1365 (1983), paragraph 

one of the syllabus. It cannot be used as a substitute for any of the more specific 

provisions of Civ.R. 60(B). See, e.g., id.; State Farm Mut. Auto. Ins. Co. v. Williams, 

8th Dist. Cuyahoga No. 107951, 2019-Ohio-4059, ¶ 43. The grounds for relief under 

Civ.R. 60(B)(5) “must be substantial.” Caruso-Ciresi at paragraph two of the 

syllabus. Civ.R. 60(B)(5) is to be used “only in extraordinary and unusual cases 

when the interests of justice warrant it.” Render v. Belle, 8th Dist. Cuyahoga No. 

93181, 2010-Ohio-2344, ¶ 13-14. A motion for relief from judgment under Civ.R. 

60(B)(5) must contain operative facts that would warrant relief from judgment 

under Civ.R. 60(B)(5). Caruso-Ciresi at 66; Render at ¶ 12. “Broad, conclusory 

statements do not satisfy the requirement that a Civ.R. 60(B) motion must be 

supported by operative facts that would warrant relief from judgment.” Natl. 
Collegiate Student Loan Trust 2007-2 v. Tigner, 2d Dist. Montgomery Nos. 27841

and 28035, 2018-Ohio-4442, ¶ 22. 

A party moving for relief from judgment under Civ.R. 60(B) is not 

automatically entitled to an evidentiary hearing. PNC Bank, N.A. v. DePalma, 8th 

Dist. Cuyahoga No. 97566, 2012-Ohio-2774, ¶ 12. The moving party bears the 

burden of proving entitlement to a hearing on the motion. See, e.g., Esplandiu v. 

Esplandiu, 8th Dist. Cuyahoga No. 104750, 2017-Ohio-5744, ¶ 13; Adomeit v. 

Baltimore, 39 Ohio App.2d 97, 103-105, 316 N.E.2d 469 (8th Dist.1974). ‘““If the 

movant files a motion for relief from judgment and it contains allegations of 

operative facts which would warrant relief under Civil Rule 60(B), the trial court 

should grant a hearing to take evidence and verify these facts before it rules on the 

motion.’”’ Kostoglou, 2019-Ohio-5116, at ¶ 37, quoting Coulson v. Coulson, 5 Ohio 

St.3d 12, 16, 448 N.E.2d 809 (1983), quoting Adomeit at 105. 

“[T]he party’s factual materials must, on the face, demonstrate 

timeliness, a reason why the motion should be granted, and a meritorious defense.” 

Esplandiu at ¶ 13, citing Danforth v. Danforth, 8th Dist. Cuyahoga No. 86693, 

2006-Ohio-2890, ¶ 14. “If the party fails to demonstrate any one of those elements 

the trial court need not hold an evidentiary hearing.” Esplandiu at ¶ 13, citing 

Adomeit at 105 (“If the material submitted by the movant in support of its motion 

contains no operative facts or meager and limited facts and conclusions of law, it 

will not be an abuse of discretion for the trial court to refuse to grant a hearing and 

overrule the motion.”); see also Kostoglou at ¶ 37-38 (where appellants failed to 
attach an affidavit “attesting to the blanket assertions in their motion for relief from 

judgment,” trial court did not abuse its discretion in denying appellants’ motion for 

relief from judgment without a hearing). A trial court abuses its discretion in 

denying a hearing “where grounds for relief from judgment are sufficiently alleged 

and are supported with evidence which would warrant relief from judgment.” Kay 

v. Marc Glassman, 76 Ohio St.3d 18, 19, 665 N.E.2d 1102 (1996), citing Adomeit at 

103, 105. 

Mezenski contends that he presented “a colorable claim” and 

“arguable grounds for relief,” entitling him to a hearing on his Civ.R. 60(B) motion,

based on: (1) his assertions in his motion that Karen and Daniel had been married 

for 25 years, that Karen “had been in an assisted living facility for one and a half (1 

1/2) years at the time the divorce was granted” and did not file an answer to the 

divorce complaint or appear for the hearing; (2) the two statements of expert 

evaluation he submitted in support of his motion, which he contends shows that 

Karen “had severe dementia” and “was not capable of managing her daily affairs”;

(3) the magistrate’s decision and related court order in the probate court action 

establishing a guardianship for Karen in October 2020 and (4) his assertions in his 

motion regarding why it took more than two-and-one-half years to file a motion to 

vacate the divorce decree. We disagree. 

First, Mezenski’s argument essentially seems to be that Daniel 

committed a fraud by seeking a divorce from Karen, knowing that she was 

incompetent, without advising the court that she was incompetent, and thereby 
obtained a disproportionate share of the marital estate and avoided paying an 

appropriate amount of spousal support. See appellant’s brief at 11 (“It is clear that 

[a]ppellee committed a fraud upon the [c]ourt by not disclosing [a]ppellant was 

incompetent.”). Motions for relief from judgment based on fraud of an adverse

party, however, must be filed within one year of the judgment. Civ.R. 60(B); GTE

Automatic, 47 Ohio St.2d 146, 351 N.E.2d 113, at paragraph two of the syllabus.

Second, as detailed above, Mezenski submitted four exhibits in 

support of his motion. He submitted no affidavits in support of his motion. The 

only document Mezenski submitted that even arguably relates to Karen’s alleged 

incompetency at the time of the divorce proceedings is part of exhibit No. 4 — a copy 

of a statement of expert evaluation on Probate Court Form 17.1, signed by an 

unidentified “evaluator” on September 3, 2020, purportedly relating to an

evaluation of Karen on December 7, 2017. The form states, “The Statement of 

Evaluation does not declare the individual competent or incompetent, but is 

evidence to be considered by the [c]ourt.” There is no time stamp or other indication 

that the document was filed with or otherwise submitted to the probate court.

As completed, the document indicates that Karen is “mentally 

impaired,” has “severe” “[m]ental [r]etardation/[d]evelopmental [d]isabilities” and 

had been diagnosed with Parkinson’s disease with dementia. The statement further 

indicates that Karen takes various medications and is wheelchair bound, that Karen 

has “episodes of alertness, some excessive daytime sleepiness, some hallucinations” 

and that Karen was not believed to be capable of caring for her “activities of daily 
living,” making decisions regarding “medical treatments, living arrangements and 

diet” or managing her finances and property. No “indications of abuse, neglect or 

exploitation” were noted. Although the statement, as completed, indicates that the 

evaluation was performed at the Cleveland Clinic on December 7, 2017, the line on 

which the “[n]ame & [t]itle/[p]rofession” of the individual completing the form was 

to be identified is blank, and the handwriting of the individual who completed the 

responses to the questions on the form clearly does not match that of the 

unidentified evaluator who signed the form nearly three years later on September 3, 

2020. 

Further, as noted above, although Mezenski contends that Karen was 

not competent at the time of the divorce proceedings, he does not dispute that the 

trial court properly granted the parties a divorce on grounds of incompatibility. 

Mezenski sought to have the divorce decree vacated because he believes the property 

division and spousal support award were inequitable. However, Mezenski’s motion 

and supporting materials do not contain any operative facts demonstrating that the 

property division or $144,000 in spousal support awarded was inequitable. 

As discussed above, the trial court’s August 24, 2018 divorce decree

divided the parties’ “separate property, marital property and debts acquired during 

the marriage.” The transcript from the hearing was not included in the record on 

appeal. Accordingly, it is unknown what evidence was presented at the divorce 

hearing regarding the property division and award of spousal support. Simply 

because the property division was not equal does not mean it was not equitable. As 
noted above, the trial court expressly stated in the divorce decree that the division 

of property, “though not equal, is equitable” because the marriage was “a second 

marriage for both” parties and “a significant portion” of Daniel’s IRA was 

“premarital.” Other than the portion of Daniel’s IRA, which the trial court

specifically referenced as being “premarital” property, it is unknown to what extent 

any of the assets divided by the trial court were determined to be separate property 

rather than marital property.

Mezenski has not shown that the trial court abused its discretion in 

denying his motion for relief from judgment pursuant to Civ.R. 60(B)(5) without a 

hearing. Accordingly, we overrule his first and third assignments of error.

Finally, Mezenski claims that the trial court abused its discretion in 

failing to appoint a guardian ad litem to protect Karen’s interests in the divorce 

proceedings due to her incompetency, pursuant to Civ.R. 17(B). That rule provides, 

in relevant part:

When a[n] * * * incompetent person is not otherwise represented in an 

action the court shall appoint a guardian ad litem or shall make such 

other order as it deems proper for the protection of such minor or 

incompetent person.

Civ.R. 17(B) authorizes a court to appoint a guardian ad litem for the 

protection of an individual who is incompetent.3 ‘“The trial court’s obligation to 

3 R.C. 2111.01(D) defines an “incompetent” person as one who is “so mentally 

impaired, as a result of a mental or physical illness or disability, as a result of intellectual 

disability, or as a result of chronic substance abuse, that the person is incapable of taking 

proper care of the person’s self or property or fails to provide for the person’s family or 

other persons for whom the person is charged by law to provide” or one who is “confined 

to a correctional institution within this state.” 
appoint a guardian or other representative, or make some other proper order, arises 

when the court determines that a minor or incompetent person is not otherwise 

represented.’” Gallion v. Gallion, 10th Dist. Franklin No. 17AP-556, 2018-Ohio3060, ¶ 20, quoting State v. Kendrick, 10th Dist. Franklin No. 98AP-1305, 1999 

Ohio App. LEXIS 4622 (Sept. 30, 1999), citing In re Guardianship of Carter, 10th 

Dist. Franklin No. 90AP-755, 1991 Ohio App. LEXIS 586 (Feb. 8, 1991). But see

Thomasson v. Thomasson, 153 Ohio St.3d 398, 403, 2018-Ohio-2417, 106 N.E.3d 

1239, ¶ 21, 36 (trial court’s order treating appellant as though she had been 

adjudicated incompetent and appointing a guardian ad litem to represent her 

interests in divorce case that “was not preceded by an adjudication of incompetency, 

prior notice, and any opportunity to be heard on the issue” violated appellant’s right 

to due process; “Civ.R. 17(B) permits the trial court to appoint a GAL to represent 

an adult only when the court has adjudicated the adult to be incompetent.”).

In this case, there is nothing to indicate that Karen had been 

adjudicated incompetent at the time of the divorce proceedings. Even assuming 

Karen was incompetent at that time and, even assuming, as Mezenski argues, that 

the trial court had “an affirmative duty to investigate any reasonable indication that 

a pro se party to a lawsuit may be mentally incompetent,” the trial court would have

had no way of knowing that Karen could be incompetent. Karen did not appear 

during the divorce proceedings, and no one advised the trial court that there could 

be an issue with her competency. Simply because Karen, who was then 67, was living 

at Brookdale Westlake Village, a senior living community, at the time of the divorce 
proceedings would not reasonably lead the trial court to believe she was 

incompetent. Accordingly, the trial court did not abuse its discretion or otherwise 

err in failing to appoint a guardian ad litem to protect Karen’s interests during the 

divorce proceedings. Mezenski’s second assignment of error is overruled.

Judgment affirmed. 

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

It is ordered that a special mandate be sent to the Cuyahoga County 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.

EILEEN A. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and

CORNELIUS J. O’SULLIVAN, JR., J., CONCUR