[Cite as Davis v. Davis, 2016-Ohio-7790.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Joseph Davis, : 

 Plaintiff-Appellee, : 

 No. 15AP-1078 

v. : (C.P.C. No. 08DR-2694)

Carmen Davis, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on November 17, 2016 

 

On brief: Law Offices of Jefferson Liston, LLC, and 

Jefferson Liston, for appellee. Argued: Jefferson Liston. 

On brief: Favor Legal Services, and H. Macy Favor, Jr., for 

appellant. Argued: H. Macy Favor, Jr. 

 

APPEAL from the Franklin County Court of Common Pleas, 

Division of Domestic Relations 

HORTON, J. 

{¶ 1} Defendant-appellant, Carmen Davis, appeals a decision of the Franklin 

County Court of Common Pleas, Division of Domestic Relations, issued on October 28, 

2015, denying her motion for relief from judgment pursuant to Civ.R. 60(B)(5). For the 

following reasons, we affirm. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} On January 14, 2015, Carmen filed her amended motion for relief from 

judgment pursuant to Civ.R. 60(B)(5) seeking modification to the divorce decree that was 

entered on July 30, 2010, between herself and her ex-husband, plaintiff-appellee, Joseph 

Davis ("Joe"). On August 10, 2010, the trial court filed a shared parenting plan, signed by 

both Carmen and Joe. 
No. 15AP-1078 2 

{¶ 3} In her amended motion for relief from judgment, Carmen sought 

modification to provisions in the original decree regarding spousal support, real 

property/marital residence, pension/retirement plans, child support (duration and 

amount), child transportation arrangements, medical coverage, and tax exemption. 

{¶ 4} A hearing on the motion was set for July 7, 2015. On June 29, 2015, Joe 

filed a motion to dismiss, seeking an order from the trial court to dismiss Carmen's 

motion for relief from judgment. On July 14, 2015, Carmen filed the following motions: a 

motion to compel; a motion in opposition to Joe's motion to dismiss; a motion in 

opposition to Joe's motion to compel; and a motion to extend time to respond to Joe's 

motion to sell the home. The trial court granted a continuance to respond to Joe's motion 

to dismiss and the matter was later heard by the trial court on July 15, 2015. 

{¶ 5} In an entry dated October 28, 2015, the trial court denied Carmen's motion 

for relief from judgment. The trial court stated that although Carmen invoked the catchall provision of Civ.R. 60(B)(5), she had failed to state her claims for relief with 

"specificity;" that her "claims are not supported by evidence, case law, or statute;" and 

that she had "not proven that she has a meritorious defense or claim to present if relief is 

granted or even that the motion is made within a reasonable time." (Jgmt. Entry at 3.) 

The trial court pointed out that Carmen was essentially attempting to relitigate the terms 

of her divorce five years after entering into it, and that "she was aware of her own financial 

circumstances" when she negotiated the judgment entry decree of divorce. (Jgmt. Entry at 

3.) 

II. ASSIGNMENTS OF ERROR 

{¶ 6} Appellant appeals, assigning the following errors for our review: 

[I.] THE TRIAL COURT ABUSED ITS DISCRETION WHEN 

IT DENIED DEFENDANT'S MOTION PURSUANT TO CIV.R. 

60(B)(5) WITHOUT A HEARING AFTER IT INITIALLY 

GRANTED ONE. 

[II.] THE TRIAL COURT ERRED WHEN IT GRANTED 

PLAINTIFF'S PROCEDURALLY DEFICIENT MOTION TO 

DISMISS. 
No. 15AP-1078 3 

III. DISCUSSION 

{¶ 7} In order to prevail on a motion brought pursuant to Civ.R. 6o(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. 6o(B)(1) through (5); and (3) the motion is made within a reasonable time, and, 

where the grounds of relief are Civ.R. 6o(B)(1), (2) or (3), not more than one year after the 

judgment, order or proceeding was entered or taken.' " Caron v. Manfressa, 1oth Dist. 

No. 98AP-1399 (Sept. 23, 1999), quoting Argo Plastic Products Co. v. Cleveland, 15 Ohio 

St.3d 389, 391 (1984), quoting GTE Automatic Elec. v. ARC Industries, 47 Ohio St.2d 146 

(1976), paragraph two of the syllabus. 

{¶ 8} A motion for relief from judgment is addressed to the sound discretion of 

the trial court, and a ruling will not be disturbed absent an abuse of discretion. Griffey v. 

Rajan, 33 Ohio St.3d 75, 77 (1987). "The term 'abuse of discretion' connotes more than an 

error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or 

unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 

{¶ 9} Turning to the merits of the Civ.R. 6o(B) motion, the trial court had a valid 

reason for denying the motion. 

{¶ 10} Carmen filed her motion for relief from judgment under Civ.R. 60(B)(5), the 

"catch-all" provision of the rule. Unlike subsections (1) through (4), which authorize relief 

from judgment for specific reasons such as mistake, excusable neglect, or newly 

discovered evidence, the catch-all provision allows relief for "any other reason justifying 

relief from the judgment" when a more specific reason does not apply. The catch-all 

provision "reflect[s] 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 (1983), 

paragraph one of the syllabus. "The grounds for invoking the rule [under the catch-all 

provision] must be substantial, and relief may be granted only in unusual or extraordinary 

circumstances." Daroczy v. Lantz, 10th Dist. No. 02AP-31, 2002-Ohio-5417, ¶ 39, citing 

Adomeit v. Baltimore, 39 Ohio App.2d 97, 105 (8th Dist.1974). 

{¶ 11} Here, the trial court did not abuse its discretion when it overruled Carmen's 

motion. She presented no new claim or defense relevant to her original divorce 

proceedings. Rather, she attempted to relitigate all the issues that had been previously 
No. 15AP-1078 4 

resolved in the original decree. Moreover, as the trial court noted, many of the financial 

issues facing Carmen were within her knowledge prior to the divorce. These do not qualify 

as unusual or extraordinary circumstances. 

{¶ 12} Furthermore, Rule 13 of the Local Rules of the Franklin County Court of 

Common Pleas, Division of Domestic Relations, states that any motion seeking relief 

under Civ.R. 60(B) must include "a memorandum of fact and law and may include 

affidavits, transcripts, depositions * * * and other relevant documentary materials." Here, 

Carmen failed to even include an affidavit attesting to the changed circumstances she 

describes in the memorandum. The memorandum itself cited none of the relevant legal 

standards for granting relief under Civ.R. 60(B). Finally, as the trial court noted, the 

motion came five years after the original divorce decree. For these reasons, the trial court 

did not abuse its discretion when denying the motion. 

{¶ 13} Nor was Carmen entitled to an evidentiary hearing on the motion: 

A party who files a Civ.R. 60(B) motion for relief from 

judgment is not automatically entitled to a hearing on the 

motion. Instead, the movant bears the burden of 

demonstrating that he or she is entitled to a hearing on the 

motion. To warrant a hearing on a Civ.R. 60(B) motion, the 

movant must allege operative facts that would warrant relief 

under Civ.R. 60(B). Kay v. Marc Glassman, Inc., 76 Ohio 

St.3d 18, 19, 1996 Ohio 430, 665 N.E.2d 1102 (1996). 

Settonni v. Settonni, 8th Dist. No. 97784, 2012-Ohio-3084, ¶ 39. 

{¶ 14} Carmen's second assignment of error argues that the trial court erred when 

it granted Joe's "Motion to Dismiss." This assignment of error is rendered moot by 

overruling her first assignment of error. The trial court's denial of Carmen's motion was 

the only action that had a substantive effect on her rights. "Granting" the motion to 

dismiss was redundant because the court had already denied Carmen's motion. 

Furthermore, the "Motion to Dismiss" was, in reality, a memorandum in opposition to 

Carmen's motion under Civ.R. 60(B). By asking the trial court to "dismiss" Carmen's 

motion, it was only asking the trial court to take action on Carmen's Civ.R. 60(B) motion. 
No. 15AP-1078 5 

IV. DISPOSITION 

{¶ 15} Having overruled Carmen's first assignment of error and rendered the 

second assignment of error moot, we affirm the judgment of the Franklin County Court of 

Common Pleas, Division of Domestic Relations. 

Judgment affirmed. 

DORRIAN, P.J. and SADLER, J., concur. 

_________________