[Cite as Stevens v. Stevens, 2016-Ohio-7925.]

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

SOPHIA STEVENS 

 Plaintiff-Appellant 

-vsROBERT STEVENS 

 Defendant-Appellee 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. John W. Wise, J. 

: Hon. Craig R. Baldwin, J. 

: 

: 

: Case No. 16-CA-17 

: 

: 

: O P I N I O N 

CHARACTER OF PROCEEDING: Civil appeal from the Fairfield County Court 

of Common Pleas, Domestic Relations 

Division, Case No. 2014 DR 00048 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: November 23, 2016 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

JASON DONNELL ANGELA SEIMER 

118 S. Pearl Street 437 N. Broad Street 

Lancaster, OH 43130 Lancaster, OH 43130 
[Cite as Stevens v. Stevens, 2016-Ohio-7925.]

Gwin, P.J. 

{¶1} Appellant appeals the April 20, 2016 judgment entry of the Fairfield County 

Court of Common Pleas, Domestic Relations Division, denying her Civil Rule 60(B) 

motion to vacate. 

Facts & Procedural History

{¶2} Appellant Sophia Stevens and appellee Robert Stevens were married on 

November 21, 1992. The parties had two children during the marriage, M.S., born April 

9, 2000 and H.S., born December 5, 2003. On February 5, 2014, appellant filed a 

complaint for divorce against appellee. 

{¶3} On July 13, 2015, the parties filed a handwritten memorandum judgment 

entry. The memorandum entry provides it will be filed, but not journalized, and that the 

attorney of record shall prepare a final judgment entry to be filed with the court in 

accordance with the local rules. With regards to child support, the handwritten judgment 

entry provides that “Father shall be obligated to pay child support to be calculated 

pursuant to using the parties’ documented current incomes, per attached worksheet.” 

The handwritten memorandum judgment entry did not include a provision with regards to 

child support arrearages. 

{¶4} On September 1, 2015, an agreed judgment entry and decree of divorce 

was filed and journalized. The judgment entry was signed by appellant, appellee, 

appellant’s attorney, appellee’s attorney, and the trial court judge. As to child support, 

the agreed judgment entry and decree of divorce provides that appellee “shall pay child 

support pursuant to the attached child support worksheet” and “the above child support 
Fairfield County, Case No. 16-CA-17 3 

amount agreed upon by the parties was computed in accordance with Chapter 3119 of 

the Ohio Revised Code. A copy of the Child Support Worksheet is attached.” 

{¶5} Appellant filed a motion to vacate pursuant to Civil Rule 60(A) and/or Civil 

Rule 60(B). In her motion, appellant alleged that appellee was supposed to pay $3,240.17 

in child support arrearages and this was inadvertently omitted from both the handwritten 

memorandum journal entry and the agreed journal entry/decree of divorce. The trial court 

issued a notice that it set her motion for a non-oral hearing. 

{¶6} Appellant filed a supplemental memorandum in support of her motion on 

April 12, 2016. Attached to the supplemental memorandum were the following: Exhibit 

A, a copy of the agreed journal entry and decree of divorce; Exhibit B, a copy of the 

Fairfield County Child Support Enforcement Agency financial transaction history for the 

period of January 1, 2014 through July 9, 2015 showing an unpaid balance of $3,240.17; 

and Exhibit C, a copy of the handwritten memorandum journal entry. In the supplemental 

memorandum, appellant argues she has a meritorious defense in that she made 

compromises during negotiations in exchange for appellee paying the child support 

arrearages, including: agreeing to waive spousal support, relinquishing rights in the 

Millfield property, allowing appellee to claim M.S. as a dependent every other year for tax 

purposes, and allowing appellee to retain rent from the marital property. 

{¶7} Appellee filed a memorandum contra to appellant’s motion on April 13, 

2016, and argued there was no intent by appellee to preserve the arrears, as indicated 

by both the memorandum journal entry and the agreed journal entry/decree of divorce. 

Further, that both parties made compromises in negotiations and such compromises were 

not specifically related to the arrearages. 
Fairfield County, Case No. 16-CA-17 4 

{¶8} The trial court issued a judgment entry denying appellant’s motion on April 

20, 2016. The trial court first found the omission was not a clerical mistake and would be 

a substantive change; thus, it was not proper to correct the entry pursuant to Civil Rule 

60(A). As to Civil Rule 60(B)(1), the trial court found appellant did not present operative 

facts to warrant a grant of 60(B) motion on the basis of an alleged mistake or 

inadvertence. The trial court stated unsworn allegations alone are not sufficient. Further, 

that mere carelessness on a litigant’s part is not sufficient to rise to the level of mistake, 

inadvertence, and/or excusable neglect. 

{¶9} Appellant appeals the April 20, 2016 judgment entry of the Fairfield County 

Court of Common Pleas, Domestic Relations Division, and assigns the following as error: 

{¶10} “I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN 

DENYING APPELLANT’S RULE 60(B) MOTION BEFORE HOLDING AN EVIDENTIARY 

HEARING.” 

I. 

{¶11} The decision whether to grant a motion for relief from judgment under Civ.R. 

60(B) lies within the trial court’s sound discretion. Griffey v. Ragan, 33 Ohio St.3d 75, 

514 N.E.2d 1122 (1987). In order to find an abuse of discretion, we must determine the 

trial court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. 

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

{¶12} Civil Rule 60(B) provides 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 

proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable 

neglect * * *.” A party seeking relief from judgment pursuant to Civil Rule 60(B) must 
Fairfield County, Case No. 16-CA-17 5 

show: (1) a meritorious defense or claim to present if relief is granted; (2) entitlement to 

relief under one of the grounds set forth in Civ.R. 60(B)(1)-(5); and (3) the motion must 

be timely filed. GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 

351 N.E.2d 113 (1976). A failure to establish any one of these three requirements will 

cause the motion to be overruled. Argo Plastic Prod. Co. v. Cleveland, 15 Ohio St.3d 

389, 474 N.E.2d 328 (1984). 

{¶13} In her assignment of error, appellant first contends the trial court abused its 

discretion in not granting her motion pursuant to Civ.R. 60(B)(1) for excusable neglect. 

In her motion for relief, appellant argues the failure to include the provision for appellee 

to pay her child support arrears was the result of “mistake, inadvertence, surprise, or 

excusable neglect” as such provision was “lost in negotiation.” To determine whether 

neglect is “excusable” under Civ.R. 60(B)(1), a court must consider all the surrounding 

facts and circumstances. Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 520 N.E.2d 

564 (1988). 

{¶14} Excusable neglect has been further defined as some action “not in 

consequence of the party’s own carelessness, inattention, or willful disregard of the 

process of the court, but in consequence of some unexpected or unavoidable hindrance 

or accident.” Maggiore v. Barensfeld, 5th Dist. Stark Nos. 201CA00180, 2011CA00230, 

2012-Ohio-2909. It is well settled that mere carelessness on a litigant’s part, or on the 

part of his or her attorney, is not sufficient to rise to the level of mistake, inadvertence, 

surprise, or excusable neglect. Muskingum Watershed Conservatory District v. Kellar, 

5th Dist. Tuscarawas No. 2011AP020009, 2011-Ohio-6889; Blaney v. Kerrigan, 5th Dist. 

Fairfield No. 12-CA-86, 1986 WL 8646 (Aug. 4, 1986). “Excusable neglect is not present 
Fairfield County, Case No. 16-CA-17 6 

if the party seeking relief could have prevented the circumstances from occurring.” 

Maggiore v. Barensfeld, 5th Dist. Stark Nos. 201CA00180, 2011CA00230, 2012-Ohio2909, citing Porter, Wright, Morris & Arthur, LLP v. Frutta Del Mondo, Ltd., 10th Dist. 

Franklin No. 08AP-69, 2008-Ohio-3567. 

{¶15} In this case, we find the trial court did not abuse its discretion in finding no 

excusable neglect under these facts and circumstances. The failure to include the 

provision with regards to the payment of child support arrears was not the consequence 

of some unexpected or avoidable hindrance or accident. Rather, appellant could have 

controlled or guarded against the event by making sure the child support arrearage 

provision was contained in the handwritten memorandum and/or in the agreed judgment 

entry/decree of divorce that both she and her attorney signed. 

{¶16} In her assignment of error, appellant next argues the trial court erred in 

failing to hold an evidentiary hearing on her motion to judge the credibility of appellant 

and appellee. We disagree. 

{¶17} The standard for when an evidentiary hearing on a Civil Rule 60(B) motion 

is necessary is set forth in Cogswell v. Cardio Clinic of Stark County, Inc., 5th Dist. Stark 

No. CA-8553, 1991 WL 242070 (Oct. 21, 1991). In Cogswell, this Court held under Civil 

Rule 60(B) that a hearing is not required unless there exist issues supported by 

evidentiary quality affidavits. Id. A trial court must hold an evidentiary hearing when the 

motion and supporting evidence contain sufficient allegations of operative facts, which 

would support a meritorious defense to the judgment. Id.; Capital One Bank (USA), N.A. 

v. King, 5th Dist. Stark No. 2014CA00232, 2015-Ohio-3600. 
Fairfield County, Case No. 16-CA-17 7 

{¶18} In this case, in her brief attached to her motion for relief and in her 

supplemental memorandum, appellant disputed the amount of child support appellee 

owed her, arguing that both the handwritten agreement and the final judgment entry were 

supposed to include a provision in which appellee was to pay appellant for child support 

arrearages in the amount of $3,240.17. This is a dispute of fact. Appellant did not attach 

evidentiary quality affidavits to her motion for relief from judgment to support her dispute 

of fact as she did not file any affidavits in support of her motion. Accordingly, we find the 

trial court did not err in not holding an evidentiary hearing, as there were no supportive 

affidavits containing allegations of operative fact that support a meritorious defense 

entitling appellant to an evidentiary hearing. Chase Home Finance, LLC v. Lindenmayer, 

5th Dist. Licking No. 15-CA-32, 016-Ohio-1202; Capital One Bank (USA), N.A. v. King, 

5th Dist. Stark No. 2014CA00232, 2015-Ohio-3600. As this Court has previously noted, 

“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.” Blaney v. Kerrigan, 5th Dist. Fairfield No. 

12-CA-86, 1986 WL 8646 (Aug. 4. 1986), quoting East Ohio Gas v. Walker, 59 Ohio 

App.2d 216, 394 N.E.2d 348 (8th Dist. 1978). 

{¶19} Appellant also contends in her brief that the trial court abused its discretion 

in denying the motion because she alleged a meritorious defense in her motion to vacate. 

Appellant argues she made several compromises during the negotiations in exchange for 

appellee’s obligation to pay the arrearages, including agreeing to waive child support, 

relinquishing her rights in the Millfield property, allowing appellee to claim the minor child 
Fairfield County, Case No. 16-CA-17 8 

as a dependent every other year for tax purposes, and allowing appellee to retain the rent 

from the marital property. 

{¶20} The denial of a hearing and the presentation of a meritorious defense go 

hand in hand. Chase Home Finance, LLC v. Lindenmayer, 5th Dist. Licking No. 15-CA32, 016-Ohio-1202. As detailed above, the motion and supporting evidence did not 

contain sufficient allegations of operative facts to support a meritorious defense to the 

judgment. See Wells Fargo Bank v. Grutsch, 5th Dist. Delaware Nos. 14 CAE 1000067, 

15 CAE 050041, 2015-Ohio-4721. Further, while the provisions appellant cites are 

included in both the handwritten memorandum journal entry and the agreed journal 

entry/decree of divorce, there is no indication in the record or in either document that 

these provisions were included in exchange for appellee’s payment of child support 

arrearages. 
Fairfield County, Case No. 16-CA-17 9 

{¶21} Based on the foregoing, we find the trial court did not abuse its discretion in 

denying appellant’s motion to vacate and/or in failing to hold an evidentiary hearing. 

Appellant makes no showing by way of affidavit that excusable neglect existed, or that 

she has a meritorious defense to present if relief is granted. Appellant’s assignment of 

error is overruled and the April 20, 2016 judgment entry of the Fairfield County Court of 

Common Pleas, Domestic Relations Division, is affirmed. 

By Gwin, P.J., 

Wise, J., and 

Baldwin, J., concur