[Cite as Cullimore v. Cullimore, 2022-Ohio-3208.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

HOCKING COUNTY

CHRISTINE CULLIMORE, :

 : Case No. 21CA7

Plaintiff-Appellee, :

v. : DECISION AND JUDGMENT

 : ENTRY

ADAM CULLIMORE, :

 :

Defendant-Appellant. :

APPEARANCES:

Ryan Shepler, Saving & Shepler, Logan, Ohio, for Appellant.

Sierra L. Meek, Nolan & Meek Co., L.P.A., Nelsonville, Ohio, for Appellee.

________________________________________________________________

Smith, P.J.

{¶1} Adam Cullimore appeals the Judgment Entry, Decree of Divorce of the 

Hocking County Common Pleas Court, Domestic Relations Division, entered 

March 22, 2021, and the Judgment Entry Overruling Objections, entered June 14, 

2021. On appeal, Mr. Cullimore, “Husband,” asserts five assignments of error 

challenging the trial court’s rulings in the divorce decree and during the posttrial 

proceedings. Having reviewed the record, we find Husband’s arguments are 

without merit. Therefore, all assignments of error are hereby overruled and the 

judgment of the trial court is affirmed. 

FACTUAL AND PROCEDURAL BACKGROUND
Hocking App. No. 21CA7 2

{¶2} Husband and Christine Cullimore, “Wife,” were married in December 

2006. The parties had three children: L.C., born in 2006; A.C., born in 2009; and 

P.C., born in 2015. On September 15, 2020, Wife, through counsel, filed a Motion 

and Affidavit for Ex Parte Temporary Orders and Other Equitable Relief. Wife’s 

affidavit averred that Husband had a significant drug problem and was violent. 

Wife and the children were protected parties pursuant to a Domestic Violence Civil 

Protection Order (DVCPO) filed June 15, 2020. Wife indicated Husband’s 

violence was directed to her and the oldest child and that the younger children 

were intimidated by violence they had witnessed. Husband was currently being 

held in jail in Delaware County. 

{¶3} Additionally, on September 15, 2020, Wife filed a Complaint for 

Divorce with Children. Wife alleged that Husband had been guilty of gross 

neglect and extreme cruelty and that the parties were incompatible. Wife requested 

that the court equitably distribute the separate and marital property and debts of the 

parties. Wife requested that she be designated the residential and legal custodian 

of the minor children. She further requested that Husband be prohibited from 

parenting time with the children. Wife requested statutory child support.

{¶4} At the time of the divorce filing, service of process for Husband was 

requested at the Delaware County Jail. The Hocking County domestic court 

magistrate granted ex parte temporary orders, designated Wife as the residential 
Hocking App. No. 21CA7 3

parent and legal custodian and denied Husband visitation privileges. The 

magistrate also made additional temporary orders relating to the parties’ joint and 

separate real and personal property and debts. 

{¶5} The magistrate conducted a pretrial on October 14, 2020. Reflected in 

the Magistrate’s Order dated October 15, 2020, shortly before the pretrial began, 

Husband sent the court and Wife’s attorney a handwritten motion for extension of 

time, along with an accompanying letter. Husband indicated in the letter that he 

was incarcerated. Husband also sent the court a Financial Disclosure Form 

typically used by indigent parties to seek counsel in criminal cases. The magistrate 

interpreted receipt of the form as a request for court-appointed counsel. The 

magistrate denied the request to continue the pretrial hearing. The magistrate also 

denied the motion for court-appointed counsel. 

{¶6} On November 20, 2020, the magistrate conducted a temporary order 

hearing. The magistrate found that Husband had been duly served. Wife testified 

that the mortgage payments on the marital home were approximately four months 

behind. Because her name was not on the mortgage of the marital home, the lender 

would not speak to her regarding the issue. Wife also testified that she wanted to 

sell some of the parties’ property, mainly motor vehicles, in order to get money to 

pay towards the mortgage. Based on wife’s sworn testimony the magistrate 

ordered that PennyMac Loan Services LLC be added as a third-party defendant; 
Hocking App. No. 21CA7 4

that the third-party defendant was authorized and ordered to communicate with 

Wife regarding the parties’ loan/mortgage options on the marital home; that 

Husband was ordered to complete and return a release and a power of attorney; 

that Wife was authorized to sell at her discretion a pontoon boat, an Angler boat, 

Ford Bronco, golf cart, and CanAm; and that Wife keep an itemized accounting of 

these transactions. The magistrate ordered Husband be served with the temporary 

orders both at the Licking County Jail and when Husband appeared for 

arraignment in Hocking County later in December. 

{¶7} The magistrate conducted a status conference on December 14, 2020. 

At the conclusion, the magistrate reiterated the previous orders and directed that 

Husband be served at the Southeastern Ohio Regional Jail. The docket indicates 

additional pretrials were conducted on January 8, 2021 and March 5, 2021. 

However, on February 26, 2021, Husband filed a Motion to Contest Divorce, a 

Motion to Be Present, and a Motion to Appoint Counsel. On March 1, 2021, the 

trial court denied the motions. While the trial court denied Husband’s request to 

transport him from the jail, he ordered that Husband could make arrangements to 

be present at the final divorce hearing on March 22, 2021 via Zoom.

{¶8} At the final divorce hearing Wife and her mother provided sworn 

testimony. Wife again testified that she wanted to sell the motor vehicles for the 

purpose of paying past due debt. She testified that American Tar N Chip,
Hocking App. No. 21CA7 5

LLC1 was her husband’s business and she waived her right to the vehicles 

associated with the company. At the conclusion of the hearing the trial court 

ordered:

1. That Wife be granted a divorce;

2. That Wife was designated as residential parent and legal custodian of the 

minor children;

3. That Husband, in accordance with child support guidelines in R.C. 

3119.021, must pay $800.00 per month for the parties’ minor children;

4. That title and interest in the marital residence was vested in Wife for the 

purposes of selling the residence for the best price obtainable and any 

proceeds from sale were to be applied to costs associated with the property, 

and that if any profit remained, the parties would share the proceeds equally, 

with Husband solely responsible for any deficiencies remaining after the sale 

of the property;

5. That Husband was divested of title in several motor vehicles and title 

conveyed to Wife;

6. That Husband was entitled to his coin books, his personal belongings, a pullbehind trailer, and all equipment specifically used for American Tar N Chip, 

LLC, and that he remained the sole owner of American Tar N Chip, LLC.

{¶9} After the trial court entered the Judgment Entry Decree of Divorce,

Husband filed a Motion for New Trial and a Motion to Vacate Judgment. Both 

motions contested the trial court’s decisions as to equitable division of property 

and child support in light of his inability to participate in the divorce proceedings

due to his incarceration. 

1The business performed seal and coating of driveways.
Hocking App. No. 21CA7 6

{¶10} The trial court denied both motions. On May 17, 2021, Husband filed 

Objections to the Magistrate’s decision denying both motions. Husband’s 

objections were set forth as follows:

1. The Magistrate erred by denying the Defendant’s Motion to 

Vacate Judgment without oral hearing.

2. The Magistrate erred by denying the Defendant’s Motion for 

a New Trial. 

{¶11} Husband filed an accompanying brief in support of his objections. 

Essentially, Husband argued that his incarceration at the time of the divorce 

hearing prevented him from introducing evidence on his own behalf and resulted in 

an inappropriate division of property and an inappropriate allocation of parental 

rights.

{¶12} On June 14, 2021, the trial court filed its Judgment Entry on 

Objections overruling Husband’s objections. This timely appeal followed.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ERRED BY FAILING TO PLACE 

VALUATIONS UPON AND FAILING TO 

EQUITABLY DIVIDE THE MARITAL PROPERTY.

II. THE TRIAL COURT ERRED BY IMPUTING INCOME 

TO MR. CULLIMORE BASED ON HIS PREVIOUS 

GROSS BUSINESS INCOME WITHOUT 

ACCOUNTING FOR APPROPRIATE DEDUCTIONS, 

AND WITHOUT HEARING APPROPRIATE 

EVIDENCE AS REQUIRED BY ROCK V. CABRAL.
Hocking App. No. 21CA7 7

III. THE TRIAL COURT ERRED BY REFUSING TO 

PERMIT MR. CULLIMORE TO MEANINGFULLY 

PARTICIPATE IN THE DIVORCE PROCEEDINGS.

IV. THE TRIAL COURT ERRED BY DENYING MR. 

CULLIMORE’S MOTION TO VACATE JUDGMENT 

WITHOUT SCHEDULING AN ORAL HEARING.

V. THE TRIAL COURT ERRED BY DENYING MR. 

CULLIMORE’S MOTION FOR A NEW TRIAL. 

A. ASSIGNMENT OF ERROR THREE

We begin with Husband’s third assignment of error. 

1. Standard of Review

{¶14} “ ‘ “As an incarcerated prisoner, [appellants have] no absolute due 

process right to attend a civil trial to which he [or she] is a party.” ’ ” Sinkovitz v. 

Sinkovitz, 2016-Ohio-2861, 64 N.E.3d 382 (4th Dist.) at ¶ 22, quoting Pryor v. 

Pryor, 4th Dist. Ross No. 09CA3096, 2009-Ohio-6670, at ¶ 29, quoting Lopshire 

v. Lopshire, 11th Dist. Portage No. 2008-P-0034, 2008-Ohio-5946, at ¶ 35.

{¶15} “ ‘There is no support in the Constitution or in judicial precedent for 

the proposition that a prisoner has an absolute due process right to attend the trial 

of a civil action to which he is a party.’ ” Rowe v. Stillpass, 4th Dist. Lawrence 

No. 06CA1, 2006-Ohio-3789, at ¶ 21, quoting Matter of Vandale, 4th Dist. 

Washington No. 92CA31, 1993 WL 235599, *2 (June 30, 1993). This includes 

divorce proceedings. See Thacker v. Thacker, 12th Dist. Warren No. CA2019-09-

099, 2020-Ohio-3319, at ¶ 17, see also Rachel v. Rachel, 5th Dist. Stark No. 
Hocking App. No. 21CA7 8

2012CA00243, 2013-Ohio-3692, ¶ 14. “The decision whether ‘to allow an 

incarcerated party to be present is within the sound discretion of the trial court.’ ” 

Thacker, supra, at ¶ 18, quoting Miklas v. Miklas, 7th Dist. Belmont No. 14BE46, 

2015-Ohio-3829m at ¶ 12, citing Trammell v. Powell, 2d Dist. Montgomery No. 

23832, 2011-Ohio-2978, ¶ 6. Similarly, “ ‘ “A ruling on the request of an 

incarcerated criminal to prosecute a pro se civil action by requiring penal 

authorities to transport him to a preliminary hearing or trial rests within the sound 

discretion of the trial court.” ’ ” Pryor, supra, at ¶ 29, quoting Abuhilwa v. Board, 

4th Dist. Pickaway No. 08CA3, 2008-Ohio-5326, at ¶ 7, quoting Mancino v. 

Lakewood, 36 Ohio App. 3d, 219 at 221, 523 N.E.2d 332 (8th Dist.). 

{¶16} Under the abuse of discretion standard of review, a reviewing court 

must affirm the decision of the trial court unless it is unreasonable, arbitrary, or 

unconscionable. See Breedlove v. Breedlove, 4th Dist. Washington No. 08CA10, 

2008-Ohio-4887, ¶ 9, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 

N.E.2d 140 (1983). “ ‘[A]buse of discretion’ [is] * * * a view or action that no 

conscientious judge could honestly have taken.’ ” State v. Kirkland, 140 Ohio 

St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67, quoting State v. Brady, 119 Ohio 

St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. “Indeed, to show an abuse of 

discretion, the result must be so palpably and grossly violative of fact or logic that 

it evidences not the exercise of will but the perversity of will, not the exercise of 
Hocking App. No. 21CA7 9

judgment but the defiance of judgment, not the exercise of reason but instead 

passion or bias.” White v. White, 4th Dist. Gallia No. 03CA11, 2003-Ohio-6316, 

¶ 25, citing Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1 

(1996). Under this highly deferential standard of review, appellate courts may not 

freely substitute their judgment for that of the trial court. See In re Jane Doe I, 57 

Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991).2

Legal Analysis

{¶17} Husband argues the trial court refused to permit him to meaningfully 

participate in the divorce proceedings and requests that the judgment be reversed. 

While conceding that as an incarcerated person he did not have an automatic right 

to participate, Husband contends that he obviously wished to participate in the 

proceedings by filing motions asking for leave to participate, hiring counsel 

immediately upon his release, and pointing out that the jail did not allow him to 

participate by Zoom. Husband averred as follows in his affidavit attached to his 

Civil Rule 60(B) motion for relief from judgment:

4. On or about September 15, 2020, plaintiff filed an action for divorce 

against me in 20DR-129.

5. Throughout the course of case 20DR0129, the Court attempted to serve 

me with a number of orders while I was incarcerated. 

2The abuse of discretion standard of review will be revisited throughout this opinion and we need not set it forth in 

further detail. 
Hocking App. No. 21CA7 10

6. Throughout October, I was in the Delaware County Jail. On or about 

October 15, 2020, the Court ordered that I sign a release to permit Ms. 

Cullimore to speak to our bank regarding the marital loan. I never received 

this order while incarcerated.

7. On or about November 2, 2020, I was transported from the Delaware 

County Jail to the Licking County Jail to resolve charges in Licking 

County.

8. On November 20, 2020, the Court again issued temporary orders, and 

directed me to be served personally, and by certified and regular mail. I 

never received these orders while incarcerated.

9. On December 22, 2020, the Court again issued temporary orders, and 

directed that I be served personally. I never received these orders while 

incarcerated. 

10. On the first day of March 2021, the Court issued a judgment entry 

denying various motions that I had filed and inviting me to participate in 

the final hearing by Zoom. I never received these orders while 

incarcerated.

11. The only court paperwork that I received while incarcerated, other than 

 the initial divorce documents, were several blue court notices. 

{¶18} Obviously, Husband did not participate at all in the final divorce 

hearing but based upon our review of the pleadings and the Hocking County Court 

of Common Pleas online docket, we conclude that Husband’s non-participation 

and non-representation was his own choice. Husband was apparently financially 

able to hire an attorney for his criminal cases but chose not to hire a divorce 

attorney to assist by filing the documents requested by the court, making the Zoom 
Hocking App. No. 21CA7 11

accommodation, and/or filing a motion to continue the final divorce hearing.3 For 

whatever reason, Husband chose to represent himself in the divorce. 

{¶19} We are cognizant of the long-standing preference in Ohio courts to 

afford reasonable leeway to pro se parties. See Goodman v. Goodman, 4th Dist. 

Ross No. 21CA3740, 2021-Ohio-3169, at ¶ 11; see generally, State ex rel. Simpson 

v. Hamilton County Court of Common Pleas (May 17, 1995), Hamilton App. No. 

C-940505[,] [1995 WL 298184]. “ ‘Nevertheless, pro se litigants are ‘presumed to 

have knowledge of the law and of correct legal procedure and [are to be] held to 

the same standard as all other litigants.’ ” Goodman, supra, at ¶ 11, quoting Kilroy 

v. B.H. Lakeshore Co., 111 Ohio App.3d 357, 363, 676 N.E.2d 171, 174 (8th Dist. 

1996); see generally, State v. Wayt (Mar. 20, 1991), Tuscarawas No. 90AP070045 

(“While insuring that pro se [litigants] are afforded the same protections and rights 

prescribed in the * * * rules, we likewise hold them to the obligations contained 

therein”). Erie Ins. Co. v. Bell, 4th Dist. Lawrence No. 01CA12, 2002-Ohio-6139, 

at ¶ 28. Proceeding in the divorce matter pro se, Husband made decisions which 

did not further his own interests. 

3We are permitted to take judicial notice of the Hocking County Court of Common Pleas online docket at 

https://hocking.oh.gov/clerk, accessed June 7, 2022, which reflects Husband’s indictment on two counts, domestic 

violence and criminal damaging, in the Hocking County Common Pleas Court. See Doczi v. Blake, 2021-Ohio3433, 178 N.E.3d 16, at fn. 3 (4th Dist.). Husband was indicted in Hocking County on August 7, 2020. Wife filed 

the Complaint for Divorce in Hocking County on September 15, 2020. On December 7, 2020, Attorney Terry 

Sherman filed a notice of appearance on behalf of Husband in the criminal matter. The docket reflects Attorney 

Sherman continued to represent Husband when Husband entered a plea on May 12, 2021, well after the March 22, 

2021 final divorce hearing. 
Hocking App. No. 21CA7 12

{¶20} Husband’s affidavit avers that he did not receive the various orders of 

the magistrate and the court, only court notices. However, the Magistrate’s Order 

of October 15, 2020 indicates that Husband sent the court office and opposing 

counsel a handwritten motion for extension of time and a request for courtappointed counsel. The docket also reflects that Husband filed handwritten 

pleadings on February 26, 2021, which included a Motion to Contest Divorce; 

Motion to be Present; and Motion to Appoint Counsel. Filing these motions 

indicates Husband’s full awareness of the proceedings and undermines the 

credibility of his affidavit indicating that he did not receive the court’s orders and 

inferring that due to a lack of knowledge of the proceedings or the court’s orders, 

he did not file appropriate responsive pleadings or documents. 

{¶21} While the trial court denied Husband’s motions and ordered that the 

final divorce hearing would proceed on March 22, 2021, the trial court did attempt 

to accommodate Husband’s request to be present. The trial court stated that if 

Husband could make arrangements with the jail to appear by Zoom or other 

videoconferencing, the court would permit Husband to participate in the final 

divorce hearing. Husband’s credibility is further damaged by his averment in 

Paragraph 18 of his affidavit that “the jail would not cooperate by allowing me to 

participate by Zoom,” while simultaneously asserting that he did not receive the 

order allowing him to attend the final divorce hearing by Zoom. Which scenario is 
Hocking App. No. 21CA7 13

correct? Husband has only himself to blame for his absence at the final divorce 

hearing.4

{¶22} Based on the foregoing, we find no merit to Husband’s argument 

herein. We find the trial court did not abuse its discretion with regard to its rulings 

on Husband’s motion to be physically present at the final divorce hearing. 

Husband chose to proceed pro se throughout the proceedings and his actions (or 

inactions) were to his detriment. Even so, the trial court attempted to 

accommodate Husband’s request to attend the final divorce hearing. Any lack of 

meaningful participation throughout the proceedings is Husband’s fault. 

Accordingly, the third assignment of error is hereby overruled. 

B. ASSIGNMENTS OF ERROR ONE AND TWO

1. Standard of Review

{¶23} “Appellate courts generally review ‘the propriety of a trial court's 

determination in a domestic relations case’ under the ‘abuse of discretion’ 

standard.” Wilburn v. Ferguson, 4th Dist. Lawrence No. 21CA4, 2021-Ohio-4256, 

at ¶ 18, quoting Booth v. Booth, 44 Ohio St.3d 142, 144, 541 N.E.2d 1028 (1989) 

(abuse of discretion standard applies to child support, custody, visitation, spousal 

support, and division of marital property). Because Husband’s arguments 

4Notably, Husband did not attach to his affidavit supporting documents which he could have presented as evidence 

at the final divorce hearing of his income, ownership of his own separate personal property, or his entitlement to 

shared parenting. 
Hocking App. No. 21CA7 14

contained in the first and second assignments of error are related and are governed 

by the abuse of discretion standard of review, we consider them jointly. 

2. Legal Analysis

{¶24} Under the first assignment of error, Husband argues that the trial court 

erred by failing to divide the property equitably. Pursuant to R.C. 3105.171(F), a 

trial court shall consider the following factors in order to ensure an equitable 

division of the parties’ marital property: 

(1) The duration of the marriage;

(2) The assets and liabilities of the spouses;

(3) The desirability of awarding the family home, or the right to reside in 

the family home for reasonable periods of time, to the spouse with custody 

of the children of the marriage;

(4) The liquidity of the property to be distributed;

(5) The economic desirability of retaining intact an asset or an interest in 

an asset;

(6) The tax consequences of the property division upon the respective 

awards to be made to each spouse;

(7) The costs of sale, if it is necessary that an asset be sold to effectuate an 

equitable distribution of property;

(8) Any division or disbursement of property made in a separation 

agreement that was voluntarily entered into by the spouses;

(9) Any retirement benefits of the spouses, excluding the social security 

benefits of a spouse except as may be relevant for purposes of dividing a 

public pension;
Hocking App. No. 21CA7 15

(10) Any other factor that the court expressly finds to be relevant and 

equitable.

{¶25} We also recognize that although trial courts possess broad discretion 

to divide marital property, the Ohio Revised Code requires trial courts to divide 

marital and separate property equitably between the parties. R.C. 3105.171(B); see 

Jenkins, supra, at ¶ 33. In most cases, this requires the court to divide the marital 

property equally. R.C. 3105.171(C)(1). If, however, an equal division would 

produce an inequitable result, the court must divide the property equitably. 

Jenkins, supra, at ¶ 34.

{¶26} Furthermore, when an appellate court reviews a trial court's property 

division, the appellate court must not consider any items in isolation, but rather, 

must consider the property division as a whole. See Jenkins v. Jenkins, 4th Dist. 

Highland No. 19CA19, 2021-Ohio-153 at ¶ 35; Briganti v. Briganti, 9 Ohio St.3d 

at 222, 459 N.E.2d 896 (1984); accord Sinkovitz v. Sinkovitz, 4th Dist. Hocking 

No. 15CA18, 2016-Ohio-2861, ¶ 35. “The appropriate consideration is whether 

the trial court's disposition of these items resulted in a property division, which, 

viewed in its entirety, was an abuse of discretion.” Briganti, 9 Ohio St.3d at 222.

{¶27} Under the first assignment of error, Husband contends that (1) the 

trial court failed to determine the value of the marital home and whether the 

marital home is separate or marital property; (2) the trial court did not make other 

designations as to separate or marital property; (3) did not determine the value of 
Hocking App. No. 21CA7 16

the various motor vehicles the parties owned; (4) did not address “past due debt;” 

and (5) did not place values on various items of untitled personal property or 

American Tar N Chip, LLC. We find no merit to these contentions. In a divorce 

case, as in any other case, it is the responsibility of the parties to put forth the 

evidence they believe is relevant and necessary for a just decision. Each party tries 

his own case, and the court reaches a decision based on the evidence that the 

parties have presented. See Walls v. Walls, 4th Dist. Highland No. 94CA849, 1995 

WL 34788, at *5.

{¶28} Furthermore, in Roberts v. Roberts, 10th Dist. Franklin No. 08AP-27, 

2008-Ohio-6121, the Tenth District Court of Appeals held:

[I]f a party fails to present sufficient evidence of valuation, that 

party has presumptively waived the right to appeal the 

distribution of those assets because the trial court can only make 

decisions based on the evidence presented[.]” Id. at ¶ 22, citing

Hruby v. Hruby (June 11, 1997), Columbiana App. No. 93-C-9. 

“[W]hen a party fails to present evidence as to the value of an 

item, it is akin to invited error and the party has waived the right 

to appeal in regard to that asset. 

{¶29} Roberts, supra at ¶ 22. See also Kautz v. Kautz, 5th Dist. Stark 

No. 2011CA34, 2011-Ohio-6547, at ¶¶ 15-16. Because Husband did not file 

an affidavit delineating the items he now contests as items of separate or 

marital property and place his own valuations on the items, or present other 

evidence of value, he has waived his right to contest the trial court’s 

distribution of the marital home, the vehicles, and various items of untitled 
Hocking App. No. 21CA7 17

personal property. Based on the foregoing, we find no need to consider 

Husband’s first assignment of error. Accordingly, it is hereby overruled. 

{¶30} Under the second assignment of error, Husband challenges the court’s 

determination as to child support. He asserts that Wife did not produce 

documentation of income and argues that the trial court erred by arbitrarily 

imputing income to him without consideration of relevant factors set forth in Rock 

V. Cabral, 67 Ohio St. 3d 108, 110-111, 616 N.E.2d 218 (1993).

5 Husband asks 

this court to remand the matter for an appropriate determination of his child 

support obligation. The application of the “abuse of discretion” standard in 

custody and support cases is also warranted because trial courts have wide latitude 

in considering the evidence and assessing the parties’ demeanor, attitude, and 

credibility. See Massie v. Simmons, 4th Dist. Scioto No. 14CA3630, 2014-Ohio5835, ¶ 18, citing Davis v. Flickinger, 77 Ohio St.3d 415, 418-419, 674 N.E.2d 

1159 (1997). 

{¶31} R.C. 3119.022 governs the procedure for awarding and calculating 

child support. The statute's overriding concern is to ensure the best interest of the 

child for whom support is being awarded. See Cummin v. Cummin, 2015-Ohio5482, 55 N.E. 3d 467, (4th Dist.), at 1; Rock v. Cabral, 67 Ohio St. 3d 108, 110. 

5

In the Supreme Court’s decision in Rock v. Cabral, 67 Ohio St. 3d, 108, 111, the court set forth these factors:

employment potential and probable earnings based on recent work history; job qualifications; prevailing job 

opportunities; and salary levels in the community. 
Hocking App. No. 21CA7 18

Thus, the statute's provisions are mandatory in nature and courts must follow the 

statute literally and technically in all material aspects. Marker v. Grimm, 65 Ohio 

St.3d 139, 601 N.E.2d 496, paragraph two of the syllabus (1992); see also Albright 

v. Albright, 4th Dist. Lawrence No. 06CA35, 2007-Ohio-3709, at ¶ 7. If a trial 

court makes the proper calculations on the applicable worksheet, the amount 

shown is “rebuttably presumed” to be the correct amount of child support due. See 

Rock at 110, 616 N.E.2d 218; Albright; see also R.C. 3119.03.

{¶32} “ ‘In calculating child support, a trial court must determine the annual 

income of each of parent.’ ” Cummin, supra, at ¶19, quoting McLaughlin v. 

Kessler, 12th Dist. Fayette No. CA2011-09-021, 2012-Ohio-3317, at ¶ 13. For an 

unemployed or underemployed parent, income is the “sum of the gross income of 

the parent and any potential income of the parent.” Id.; R.C. 3119.01(C)(5)(b).

Husband concedes that he was voluntarily underemployed throughout the divorce 

proceedings. 

{¶33} Ohio courts have held that if a parent is evasive or avoidant in 

providing income verification, a court may use the financial data that is available 

to determine the parent's gross income, even if the parent is not voluntarily 

unemployed or underemployed. See Massey v. Lambert, 7th Dist. Columbiana No. 

09CO29, 2011-Ohio-1341; Cole v. Cole, 5th Dist. No.2006-CA-00190, 2007-

Ohio-54; and Bach v. Bach (Sept. 10, 1999), 2d Dist. No. 17497. In Cole, the Fifth 
Hocking App. No. 21CA7 19

District concluded that since the father “testified evasively” and “attended trial 

with little or no information regarding his finances,” the trial court properly relied 

on the past income information to determine his support obligations. Id. at ¶ 22-

23. In Bach, the Second District held that the trial court did not abuse its discretion 

by estimating the father's income based on other information in the record where 

the father was evasive, forgetful, kept poor business records and the trial court was 

therefore skeptical about his credibility. Bach v. Bach, 2d Dist. Montgomery No. 

17497, 199 WL919935, (September 10, 1999). Massey was also evasive regarding 

his income and failed to provide verification of his income as ordered by the court. 

The appellate court, affirming, concluded that the trial court was reasonable in 

calculating Massey’s gross income using the limited information before it. Id. at ¶

61. 

{¶34} At the final divorce hearing, Wife testified to the best of her 

knowledge Husband was the sole owner of American Tar N Chip, LLC, and her 

“guestimate” for the 2019 tax year was $60,000.00. She also testified she waived 

her right to two vehicles/equipment associated with American Tar N Chip, LLC. 

The information Wife testified to regarding American Tar N Chip, LLC, was also 

set forth in Wife’s Affidavit attached to her motion for temporary orders filed the 

same day as the complaint for divorce. At no time during the proceedings did 

husband choose to provide verification of income regarding American Tar N Chip, 
Hocking App. No. 21CA7 20

LLC. The lack of information in the record is his fault. As in Massey, we find the 

trial court relied on limited information before it and did not abuse its discretion. 

{¶35} We find no merit to the second assignment of error. Accordingly, it is 

hereby overruled. 

C. ASSIGNMENT OF ERROR FOUR

1. Standard of Review

{¶36} Civil Rule 60(B) provides in pertinent part that, “On motion and upon 

such terms as are just, the court may relieve a party or his legal representative from 

a final judgment, order, or proceedings for the following reasons: (mistake, 

inadvertence, surprise, or excusable neglect... or (5) any other reason justifying 

relief from judgment.” “ ‘The decision to grant or deny a Civ.R. 60(B) motion lies 

within the trial court's discretion, and the decision will be reversed only for an 

abuse of discretion.’ ” Byers v. Dearth, 4th Dist. Ross No. 09CA3117, 2010-Ohio1988, at ¶ 8, quoting Sain v. Roo, 10th Dist. Franklin No. 02AP-448, 2003-Ohio626, at ¶ 11, citing Oberkonz v. Gosha, 10th Dist. Franklin No. 02AP-237, 2002-

Ohio-5572, at ¶ 12. Furthermore, a trial court possesses discretion when 

determining whether to hold a hearing regarding a Civ.R. 60(B) motion. See Detty 

v. Yates, 4th Dist. Ross No. 13CA3390, 2014-Ohio-1935, at ¶ 20; Kay v. Marc 

Glassman, Inc., 76 Ohio St.3d 18, 19, 665 N.E.2d 1102 (1996). Thus, an appellate 
Hocking App. No. 21CA7 21

court will not reverse a trial court's decision regarding a Civ.R. 60(B) evidentiary 

hearing absent an abuse of discretion. Id. 

2. Legal Analysis

{¶37} Husband asserts that the trial court erred by denying his motion to 

vacate judgment pursuant to Civ. Rule 60(B) without first conducting an oral 

hearing. He characterizes facts “sufficient to justify relief” as: his continuous 

incarceration during the pendency of the case; that he received only court notices 

but was not served with the pleadings; and that his request to arrange a Zoom 

appearance at the final hearing was ignored by the jail staff. Husband contends

that just because he was incarcerated does not also mean he was not entitled to a 

fair division of property. Husband apparently characterizes his incarceration and 

inability to attend the court hearings as constituting “excusable neglect” or some 

“other reason justifying relief.” For the reasons which follow, we disagree. 

{¶38} A party moving for relief from judgment under Civ.R. 60(B) bears the 

burden to show that he or she is entitled to a hearing on the motion. See Matter of 

L.S. 4th Dist. Ross No. 20CA3719, 2020-Ohio- 5516, at 4; PHH Mtge. Corp. v. 

Northrup, 4th Dist. Pickaway No. 11CA6, 2011-Ohio-6814, ¶ 28. Struckman v. 

Bd. of Edn. of Teays Valley Local School Dist., 2019-Ohio-115, 128 N.E.3d 709, 

¶ 20 (4th Dist.). If the motion “ ‘contains allegations of operative facts which 

would warrant relief under Civil Rule 60(B), the trial court should grant a hearing 
Hocking App. No. 21CA7 22

to take evidence and verify these facts before it rules on the motion.’ ” Coulson v. 

Coulson, 5 Ohio St.3d 12, 16, 448 N.E.2d 809 (1983), quoting Adomeit v. 

Baltimore, 39 Ohio App.2d 97, 105, 316 N.E.2d 469 (8th Dist.1974). In 

Struckman, we explained:

To be entitled to a hearing, a movant must present operative 

facts to show all three of the following circumstances: (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.

Id., at ¶ 21, quoting GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio 

St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. Husband’s 

motion fulfilled the requirement that it be filed within one year. 

{¶39} Wife responds that Husband did not demonstrate entitlement to a 

hearing on his Civ.R. 60(B) motion simply due to his incarceration. While 

Husband alleges that he did not receive pleadings while he was incarcerated, Wife 

again argues that these allegations are not credible. As set forth in detail above, 

Husband averred that “[t]he only court paperwork that I received while 

incarcerated, other than the initial divorce documents, were several blue court 

notices.” We agree, as discussed above, that Husband’s affidavit is lacking in 

credibility. 
Hocking App. No. 21CA7 23

{¶40} Even if we did find his affidavit credible, Husband has not satisfied 

the additional requirements for relief from judgment. Husband has not shown 

excusable neglect or any other reason justifying relief. In Cincinnati Ins. Co. v. 

Schaub, 2d Dist. Montgomery No. 22419, 2008-Ohio-4729, Schaub was convicted 

of arson. While incarcerated, a civil lawsuit was filed alleging that Schaub had 

negligently or recklessly set a fire to a residence. Eventually, judgment against 

Schaub was granted. Schaub filed a motion for relief from judgment under Civ.R. 

60(B)(1). The appellate court noted that the only evidence submitted in support of 

Schaub’s motion for relief from judgment was his own affidavit in which he stated 

that he was imprisoned, that he did not have a guardian ad litem appointed to aid in 

his defense, and that he was not aware during the lawsuit of a possibility of being 

provided an attorney from any source, including his insurance company. The 

Schaub court observed that “ ‘inexperience with legal matters’ ” is not excusable 

neglect. Id., supra at ¶ 41, quoting Boling v. DiMeche & Vlado, Inc., 10th Dist. 

Franklin No. 07AP-146, 2007-Ohio–5795, at ¶ 15 (citations omitted). 

{¶41} Husband also did not present a meritorious defense or claim. “A 

meritorious defense is one which, if proved, would entitle a party to the relief 

requested.” Williamson v. Saranda Consol. Ltd. Partnership (Dec. 14, 1989), 

Montgomery App. No. 11507, 1989 WL 150791, *4. Despite this requirement, 

while Husband claimed in his handwritten Motion to Contest Divorce that he had 
Hocking App. No. 21CA7 24

legitimate disputes regarding allocation of property rights and custody issues, 

Husband did not set forth his claim in his affidavit in support of the Civ.R. 60(B) 

motion. He did not aver that he had a meritorious defense to present if the divorce 

decree were set aside. A meritorious defense to the allegations contained in Wife’s 

complaint would have required Husband to support his responses with 

documentation. Husband relied solely upon his incarceration and this is not a 

defense. 

“The allegation of operative facts required in order to prevail 

upon a motion for relief from judgment pursuant to Civ. R. 60(B) 

must be of such evidentiary quality as affidavits, depositions, 

answers to interrogatories, written admissions, written 

stipulations, or other sworn testimony. Unsworn allegations of 

operative facts contained in a motion for relief from judgment 

filed under Civ.R. 60(B) or in a brief attached to the motion are 

not sufficient evidence upon which to grant a motion to vacate 

judgment.”

Schaub, supra, at ¶ 48, quoting East Ohio Gas Co. v. Walker (1978), 59 Ohio 

App.2d 216, 394 N.E.2d 348. See also Gill v. Grafton Correctional Institution,

Franklin App. No. 04AP-1353, 2005-Ohio-3097, at ¶ 11 (rejecting relief from 

judgment due to lack of appropriate evidence).

{¶42} Husband’s affidavit contains no facts about a potential defense and 

did not satisfy the requirement of establishing that he had a meritorious defense to 

the divorce action. Because the motion failed to satisfy all three requirements for 

setting a judgment aside under Civ. R. 60(B), the trial court did not abuse its 
Hocking App. No. 21CA7 25

discretion in overruling the motion for relief from judgment. Husband’s fourth 

assignment of error is hereby overruled. 

D. ASSIGNMENT OF ERROR FIVE

1. Standard of Review

{¶43} Relevant herein, Crim.R. 59(A), Grounds for New Trial, provides 

that:

A new trial may be granted to all or any of the parties and on 

all or part of the issues upon any of the following grounds: 

(1) Irregularity in the proceedings of the court, jury,

magistrate, or prevailing party, or any order of the court or 

magistrate, or abuse of discretion, by which an aggrieved 

party was prevented from having a fair trial; * * * (8) Newly 

discovered evidence, material for the party applying, which 

with reasonable diligence he could not have discovered and 

produced at trial * * *.

{¶44} Orders denying or granting motions for new trial under Civ.R. 

59(A)(1) are reviewed under abuse of discretion standard. See Simon v. Aulino, 

2020-Ohio-6962, 165 N.E.3d 706 (4th Dist.), at ¶ 85; Lewis v. Nease, 4th Dist. 

Scioto No. 05CA3025, 2006-Ohio-4362, at ¶ 73. “ ‘A trial court's decision 

denying a new trial pursuant to Civ.R. 59(A)(8) will not be disturbed, absent an 

abuse of discretion.’ ” Lawless v. Board of Education of Lawrence County 

Educational Service Center, 2020-Ohio-117, 141 N.E.3d 267 (4th Dist.), at ¶ 68, 

quoting Gregory v. Kottman-Gregory, 12th Dist. Madison Nos. CA2004-11-039, 

2005-Ohio-6558, at ¶ 25. 
Hocking App. No. 21CA7 26

2. Legal Analysis

{¶45} Husband asserts the trial court erred by denying his motion for new 

trial pursuant to Civ.R. 59(A). Husband argues that the identical grounds as set 

forth above, i.e. the alleged improper property division, miscalculation of child 

support, and his inability to participate meaningfully in the proceedings all justify a 

reversal of the judgment and the grant of a new trial. Wife responds to this 

assignment of error by arguing that Husband’s incarceration, refusal to fully 

participate, and claims of failed service are not “irregularities” in the proceeding as 

required by the rule. Furthermore, Wife points out that Husband has not presented 

any newly discovered evidence warranting a new trial. For the reasons which 

follow, we agree with Wife. 

{¶46} “An ‘irregularity’ that would justify a new trial under Civ.R. 59(A)(1) 

must be ‘a departure from the due, orderly and established mode of proceeding 

therein, where a party, with no fault on [her] part, has been deprived of some right 

or benefit otherwise available to [her].’ ” Simon v. Simon, 9th Dist. Summit No. 

26767, 2014-Ohio-1390, at ¶ 22 (Where Mother did not provide the court with 

doctor’s “orders” that she could not attend trial, the appellate court found Mother 

did not demonstrate an “irregularity” in the proceeding and consequently, no abuse 

of discretion by denying Mother’s motion for new trial), quoting Meyer v. 

Srivastava, 141 Ohio App.3d 662, 667 (2d Dist.2001). For purposes of Civ.R. 
Hocking App. No. 21CA7 27

59(A)(8), the phrase “newly discovered evidence” “refers to evidence of facts in 

existence at the time of trial of which the aggrieved party was excusably ignorant.” 

(Emphasis added.) Lawless v. Bd. of Educ. Serv. Ctr., 2020-Ohio-117, 141 NE 3d 

267, at ¶ 69 (4th).

{¶47} Here, we find Husband’s incarceration was entirely his own fault. 

Furthermore, Husband’s failure to present evidence at the final divorce hearing, 

though aware of the divorce complaint and the court notices, according to him, was 

also his own fault. Husband’s incarceration does not constitute an irregularity. 

And Husband’s affidavit did not claim newly discovered evidence. Based on the 

foregoing, we find no merit to Appellant’s arguments contained within the final

assignment of error. Accordingly, it is hereby overruled. The judgment of the trial 

court is affirmed. 

{¶48} Having found no merit to any of Appellant’s assignments of error, the 

judgment of the trial court is hereby affirmed.

JUDGMENT AFFIRMED.
Hocking App. No. 21CA7 28

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to 

Appellant.

The Court finds there were reasonable grounds for this appeal.

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

Hocking 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.

Hess, J. and Wilkin, J. concur in Judgment and Opinion.

For the Court,

__________________________________

Jason P. Smith

Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk.