[Cite as France v. France, 2011-Ohio-2402.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

Nos. 95629 and 95729

 LYNDA R. FRANCE

PLAINTIFF-APPELLEE

vs. 

 JOHN P. FRANCE

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED IN PART, REVERSED AND 

REMANDED IN PART

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Domestic Relations Division 

Case No. D-331762 

BEFORE: Jones, J., Stewart, P.J., and Sweeney, J. 

RELEASED AND JOURNALIZED: May 19, 2011 

ATTORNEYS FOR APPELLANT 
Andrew A. Zashin 

Jonathan A. Rich 

Robert M. Fertel 

Deborah L. Goodrich 

Christopher R. Reynolds 

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

55 Public Square, 4th Floor 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE 

Michael Simms 

23500 Mercantile Road 

Suite B 

Beachwood, Ohio 44122

Pro Hac Vice

Gary E. Williams 

Matthew W. Wilson 

The Law Firm for Family Law 

4625 East Bay Drive 

Suite 305 

Clearwater, FL 33764 

LARRY A. JONES, J.: 

{¶ 1} In this consolidated appeal, plaintiff-appellant, Lynda France (“Lynda”), appeals 

the trial court’s judgments (1) granting defendant-appellee’s, John France (“John”), motion to 

dismiss, and (2) denying Lynda’s combined motions to vacate, for relief from judgment 

pursuant to Civ.R. 60(B), and for reconsideration (collectively referred to as “Civ.R. 60(B) 
motion for relief from judgment.”) We affirm in part and reverse and remand in part. 

I. Procedural History 

{¶ 2} In May 2010, Lynda filed a complaint for legal separation against John. She 

also filed a motion for temporary orders regarding parental rights and responsibilities, spousal 

support, and marital expenses. In a supplement to that motion, Lynda sought to restrain John 

from taking the couple’s minor children from Ohio to Florida. 

{¶ 3} In July 2010, John appeared in the action for the “limited purpose of asserting 

the defenses of failure of service of process and lack of jurisdiction,” and on July 12, 2010, 

filed a motion to dismiss for lack of jurisdiction. John filed a supplement to that motion on 

July 22. On July 28, the trial court granted John’s unopposed motion to dismiss on the ground 

that John had previously filed a legal proceeding against Lynda in Florida and found that the 

issues raised in Lynda’s complaint would be determined in the Florida action and, therefore, 

jurisdiction was vested in Florida. Thereafter, on July 30, Lynda filed a response in 

opposition to John’s motion to dismiss. 

{¶ 4} On August 10, 2010, Lynda filed a Civ.R. 60(B) motion for relief from 

judgment. On August 27, Lynda filed a notice of appeal from the judgment granting John’s 

motion to dismiss. John filed a motion to stay all trial court proceedings pending resolution of 

the appeal, which the trial court granted. This court ordered a limited remand for the purpose 

of the trial court ruling on Lynda’s Civ.R. 60(B) motion for relief from judgment. Pursuant to 
that remand, on September 15, the trial court denied Lynda’s motion. Lynda appealed that 

judgment, and the two cases have been consolidated. 

{¶ 5} Lynda presents nine assignments of error for our review, which are set forth in 

the appendix. The gravamen of her challenge within those assignments of error is that the 

trial court erred in dismissing her complaint and abused its discretion in denying her Civ.R. 

60(B) motion for relief from judgment. 

II. Law and Analysis 

A. Motion to Dismiss 

{¶ 6} Civ.R. 12(B)(1) permits dismissal where the trial court lacks jurisdiction over the 

subject matter of the claim. The standard of review for a dismissal pursuant to Civ.R. 

12(B)(1) is whether any cause of action cognizable by the forum has been raised in the 

complaint. Ferren v. Cuyahoga Cty. Dept. of Children & Family Servs., Cuyahoga App. No. 

92294, 2009-Ohio-2359, ¶3. In making that determination, a court is “not confined to the 

allegations of the complaint and it may consider material pertinent to such inquiry without 

converting the motion into one for summary judgment.” Shockey v. Fouty (1995), 106 Ohio 

App.3d 420, 423, 666 N.E.2d 304. Appellate review of an appeal of a dismissal for lack of 

subject matter jurisdiction under Civ.R. 12(B)(1) is de novo. Boutros v. Noffsinger, 

Cuyahoga App. No. 91446, 2009-Ohio-740, ¶12. 

{¶ 7} R.C. Chapter 3127 is Ohio’s version of the Uniform Child Custody Jurisdiction 
and Enforcement Act (“UCCJEA” or “the Act”). The Act gives “‘jurisdictional priority and 

exclusive continuing jurisdiction to the home state.’” Rosen v. Celebrezze, 117 Ohio St.3d 

241, 2008-Ohio-853, 883 N.E.2d 420, ¶21, quoting Annotation, Construction and Operation of 

Uniform Child Custody Jurisdiction and Enforcement Act (2002), 100 A.L.R.5th 1, 20, Section 

2 [b]. 

{¶ 8} R.C. 3127.15 sets forth the requirements for a court of this state to have 

jurisdiction to make an initial determination in a child custody proceeding. Under that 

section, jurisdiction lies in Ohio if any of the following apply: (1) Ohio is the home state of 

the child at the time the custody proceeding was commenced, or within six months prior to the 

commencement of the proceeding and the child is absent from the state, but a parent or parental 

figure continues to live in the state; (2) a court of another state does not have jurisdiction 

because it is not the child’s home state, or it has declined to exercise jurisdiction because Ohio 

is the more appropriate forum and (i) there is a significant connection to Ohio and (ii) 

substantial evidence relative to the child’s care, protection, training, and personal relationships 

is available in Ohio; (3) all other courts having jurisdiction have declined to exercise 

jurisdiction because Ohio is a more appropriate forum; or (4) no other court of any state would 

have jurisdiction. 

{¶ 9} R.C. 3127.23 sets forth the facts that need to be pleaded “in the par ty’s first 

pleading or in an affidavit attached to that pleading” in a child custody proceeding. Those 
facts include the child’s present address or whereabouts, the places the child has lived within 

the last five years, and the name and present address of each person with whom the child has 

lived during that period. The section also requires that information about past custody 

determinations, current relevant proceedings, and the names and addresses of any person 

claiming to have rights with respect to the child be pleaded. 

{¶ 10} Lynda’s four-paragraph complaint alleged that: (1) prior to filing the complaint, 

she had been a resident of Ohio for at least six months and a resident of Cuyahoga County for 

at least 90 days; (2) she and John were married in Italy in 2005; (3) she and John had two 

children during their marriage; and (4) she and John were “incompatible” and John was “guilty 

of one or more acts which constitute grounds for a legal separation[.]” Upon these 

allegations, Lynda sought, among other things, a legal separation from John and custody of the 

minor children. No attachments accompanied the complaint. 

{¶ 11} In her motion for temporary orders regarding, among other things, parental rights 

and responsibilities, filed the same day as her complaint, Lynda requested an order 

“[d]eterming the rights and responsibilities regarding the parties’ minor childr en,” and 

requested a hearing so that testimony could be presented to show that her request should be 

granted. No attachments accompanied the motion or the supplement to the motion. 

{¶ 12} In his motion to dismiss, John submitted documentation from the Florida case, 

including the docket, showing that his case was initiated in March 2010 and service was had on 
Lynda on May 25, 2010, the day before she filed this case. At the time the court ruled on 

John’s motion to dismiss, it was uncontested. 

{¶ 13} On this record, the trial court did not err in granting John’s motion to dismiss on 

the ground that Florida had jurisdiction over the issues raised in Lynda’s complaint. No facts 

were averred to or pleaded relative to Ohio being the proper forum under the UCCJEA, and the 

motion was unopposed. Accordingly, the trial court’s judgment dismissing the complaint is 

affirmed. 

B. Civ.R. 60(B) Motion for Relief from Judgment 

{¶ 14} We review a trial court’s denial of a Civ.R. 60(B) motion for relief from 

judgment under an abuse-of-discretion standard. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 

77, 514 N.E.2d 1122. “‘Abuse of discretion’ has been defined as an attitude that is 

unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio 

St.3d 83, 87, 482 N.E.2d 1248. It is to be expected that most instances of abuse of discretion 

will result in decisions that are simply unreasonable, rather than decisions that are 

unconscionable or arbitrary. 

{¶ 15} “A decision is unreasonable if there is no sound reasoning process that would 

support that decision. It is not enough that the reviewing court, were it deciding the issue de 

novo, would not have found that reasoning process to be persuasive, perhaps in view of 

countervailing reasoning processes that would support a contrary result.” AAAA Ent., Inc. v. 
River Place Community Urban Redevelopment Corp. (1990), 50 Ohio St.3d 157, 161, 553 

N.E.2d 597. 

“To prevail on [a] motion under Civ. R. 60(B), the movant 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 of 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. v. ARC Industries, Inc. 

(1976), 47 Ohio St.2d 146, 150, 351 N.E.2d 113 (citations omitted). 

{¶ 16} Lynda contended in her motion that she had a meritorious claim to present if her 

motion were granted. Specifically, she claimed that Ohio is the children’s home state. In 

support of her contention, Lynda submitted her affidavit wherein she averred that in June 2009, 

after the dismissal of a previous divorce case she had filed against John, she and John 

attempted to reconcile their differences and they lived together with their children in their 

marital home in Westlake. She further averred that without her consent John took the children 

to Florida in March 2010, but returned with them in May 2010. According to Lynda’s 

affidavit, on May 26, 2010, John took the children to Florida again without her consent, and 

she has since been trying to secure their return. 

{¶ 17} In opposition to Lynda’s Civ.R. 60(B) motion, John sought to strike Lynda’s 

affidavit on the grounds that it “contain[ed] unverified and self-serving assertions and * * * 

impermissible hearsay.” We have reviewed the affidavit and find that the above-mentioned 

portions of it were permissible. 
{¶ 18} John further contended in his opposition that the trial court found that Florida 

had “significant-connection” jurisdiction under the UCCJEA. We disagree. The trial court 

noted the existence of the Florida case, and based on that existence alone, without any analysis 

or discussion as to why there might be a “significant connection” with Florida, granted John’s 

motion to dismiss. In fact, the trial court’s judgment entry did not use the words “significant 

connection,” but, rather simply stated that the case was “dismissed for the reason that the State 

of Florida has jurisdiction over the issues raised in Plaintiff’s Complaint for Legal Separation.”

 

{¶ 19} In denying Lynda’s Civ.R. 60(B) motion, the trial court found that the dismissal 

was proper because Lynda “failed to follow the local rules of [the] court” by not attaching an 

affidavit to her complaint or motion for temporary orders regarding parental rights and 

responsibilities, spousal support, and marital expenses. That is true and, therefore, as 

discussed, the judgment granting John’s motion to dismiss was proper. But Lynda attached an 

affidavit to her Civ.R. 60(B) motion. The trial court did not discuss why she was not entitled 

to relief from judgment based on the affidavit she did provide. As previously noted, “[a] 

decision is unreasonable if there is no sound reasoning process that would support that 

decision.” AAAA Ent., Inc., supra at 161. 

{¶ 20} Lynda’s motion for relief from judgment was based on “mistake, inadvertence, 

surprise or excusable neglect” under Civ.R. 60(B)(1) and “any other reason justifying relief 
from judgment” under Civ.R. 60(B)(5). 

{¶ 21} “The term ‘excusable neglect’ is an elusive concept which has been difficult to 

define and to apply.” Kay v. Marc Glassman, Inc. (1996), 76 Ohio St.3d 18, 20, 665 N.E.2d 

1102. Because of this difficulty, the Ohio Supreme Court has defined the term in the 

negative, saying that neglect is not excusable if it can be labeled as a “complete disregard for 

the judicial system” or if the conduct “falls substantially below what is reasonable under the 

circumstances.” GTE, supra at 152-153. The determination of whether a particular failure is 

excusable neglect “must be made from all the individual facts and circumstances in each case.”

D.G.M., Inc. v. Cremeans Concrete & Supply Co., Inc. (1996), 111 Ohio App.3d 134, 138, 

675 N.E.2d 1263. However, courts must remember that Civ.R. 60(B)(1) is a remedial rule “to 

be liberally construed with a view for effecting a just result.” State ex rel. Citizens for 

Responsible Taxation v. Scioto Cty. Bd. of Elections (1993), 67 Ohio St.3d 134, 136, 616 

N.E.2d 869. “[D]oubt, if any, should be resolved in favor of the motion to set aside the 

judgment so that cases may be decided on their merits.” GTE at 151. 

{¶ 22} Upon review, we find that Lynda’s failure to timely respond to the motion to 

dismiss1

 and failure to submit an affidavit with her initial pleadings were excusable neglect. 

She did submit an affidavit with her Civ.R.60(B) motion and upon review of the affidavit, we 

find that it established that Lynda has a meritorious claim to present. Thus, the first two 

 1

She filed her opposition two days after the court dismissed her complaint.
prongs of the GTE test were met. 

{¶ 23} We also find that the final prong of the GTE test, the timeliness of the Civ.R. 

60(B) motion, was met. The court dismissed Lynda’s complaint on July 28, 2010, and 

approximately two weeks later, on August 10, 2010, Lynda filed her Civ.R. 60(B) motion. On 

this record, the motion was timely. 

{¶ 24} In light of the above, the trial court abused its discretion by denying Lynda’s 

Civ.R. 60(B) motion for relief from judgment. 

Judgment dismissing the complaint is affirmed. Judgment denying the Civ.R. 60(B) 

motion for relief from judgment is reversed and the case is remanded for further proceedings 

consistent with this opinion. 

 It is ordered that appellant and appellee split the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas 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.

 

LARRY A. JONES, JUDGE 

MELODY J. STEWART, P.J., and 

JAMES J. SWEENEY, J., CONCUR 
APPENDIX 

{¶ 25} “I. The trial court erred and abused its discretion in dismissing appellant’s 

complaint for legal separation solely based upon the fact that service of the Florida paternity 

petition was obtained prior to service being obtained on her complaint. 

{¶ 26} “II. The trial court erred and abused its discretion in failing to determine 

whether it possessed subject-matter jurisdiction over the child custody issue under Ohio’s 

version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). 

{¶ 27} “III. The trial court erred and abused its discretion in failing to conduct an 

evidentiary hearing in order to determine whether Ohio was the children’s home state pursuant 

to the UCCJEA. 

{¶ 28} “IV. The trial court erred and abused its discretion in overruling appellant’s 

Civ.R. 60(B) motion based upon an issue waived by the appellee. 

“V. The trial court denied appellant due process by overruling her Civ.R. 60(B) motion due 

to the alleged failure to file a section 3127.23(A) affidavit without providing her prior 

notice of its intention and an opportunity to respond thereto. 

“VI. The trial court erred and abused its discretion in overruling appellant’s Civ.R. 60(B) 

motion on mere procedural grounds without providing her notice and an opportunity to 
correct any such deficiencies. 

“VII. The trial court erred and abused its discretion by overruling appellant’s Civ.R. 60(B) 

motion without properly considering the required factors established by the Ohio 

Supreme Court in GTE Automatic Electric, Inc. v. Arc Industries, Inc. 47 Ohio St.2d 

146, 150-151 (1975). 

“VIII. The trial court erred and abused its discretion in failing to conduct an evidentiary 

hearing on appellant’s Civ.R. 60(B) motion when the motion and attached affidavit 

contained sufficient operative facts warranting relief from judgment. 

“IX. The trial court erred and abused its discretion when it placed form over substance and 

dismissed appellant’s complaint and Civ.R. 60 motion based upon an alleged procedural 

deficiency rather than on the merits.”