[Cite as Simon v. Simon, 2019-Ohio-777.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

PAUL SIMON 

 Appellant 

 v. 

MALINDA SIMON 

 Appellee 

C.A. No. 28962 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. DR-2007-06-1815 

DECISION AND JOURNAL ENTRY 

Dated: March 6, 2019 

 

CALLAHAN, Judge. 

{¶1} Appellant, Paul Simon, appeals an order that denied his motion for relief from 

judgment. This Court affirms. 

I. 

{¶2} In the years since Paul and Malinda Simon’s divorce, they have engaged in 

continuous litigation. Although the docket reflects numerous filings, three particular events are 

relevant to this appeal. On September 24, 2014, the trial court granted Ms. Simon’s motion for 

relief from judgment to the extent that a previously undisclosed pension plan had been omitted 

from the property distribution in the divorce decree. The trial court ordered Mr. Simon to pay 

Ms. Simon $23,793.18 within fourteen days. Mr. Simon attempted to appeal, but this Court 

dismissed his appeal as untimely filed. When Mr. Simon failed to abide by the September 2014 

order, Ms. Simon moved the trial court to hold him in contempt. The trial court found Mr. 

Simon in contempt on February 13, 2015, entered judgment in favor of Ms. Simon in the amount 
2 

 

of the previous order plus her attorney fees, and sentenced Mr. Simon to twenty days in the 

Summit County jail, subject to purge. Mr. Simon did not appeal the contempt order, and he 

failed to purge the contempt. 

{¶3} Shortly thereafter, Ms. Simon moved the trial court to modify her spousal support, 

alleging that Mr. Simon was voluntarily underemployed. She filed a second motion 

approximately three months later, alleging a change in circumstances. Mr. Simon, in turn, 

moved to terminate his spousal support obligation. On March 20, 2017, the trial court adopted 

proposed findings of fact and conclusions of law filed by Ms. Simon and entered judgment on 

the uncollected balance of the pension assets with interest, awarded additional attorney fees, and 

increased Mr. Simon’s spousal support obligation. Although the reason is unclear, the trial court 

entered a second judgment on these issues dated April 7, 2017. Mr. Simon filed objections to the 

findings of fact and conclusion of law, but he did not appeal either the March 20, 2017, or the 

April 7, 2017, order. 

{¶4} Mr. Simon moved to vacate the orders issued on September 24, 2014, February 

13, 2015, and April 7, 2017, under Civ.R. 60(B)(1) and (5). He also alleged that the trial court 

lacked jurisdiction to enter the April 7, 2017, order. The trial court concluded that it did not lack 

subject matter jurisdiction to enter the April 7, 2017, order and denied his common law motion to 

vacate. With respect to Mr. Simon’s motion for relief from judgment under Civ.R. 60(B), the 

trial court concluded that each of the grounds stated in his motion attempted to use Civ.R. 60(B) 

as a substitute for appeal and, in the alternative, that the motion was not timely filed. The trial 

court denied the motion for these reasons without a hearing, and Mr. Simon filed this appeal. 
3 

 

II. 

ASSIGNMENT OF ERROR NO. 1 

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT 

FAILED TO GRANT APPELLANT’S AMENDED MOTION TO VACATE 

JUDGMENT PURSUANT TO CIV.R. 60(B)(1) AND (5). 

ASSIGNMENT OF ERROR NO. 3 

THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO 

RECOGNIZE THAT IT WAS IMPROPER FOR THE COURT TO ADOPT THE 

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 

SUBMITTED [BY] APPELLEE WITHOUT CONDUCTING A HEARING TO 

ADMIT ANY FACT INTO THE RECORD WHICH COULD BE PROPERLY 

INCORPORATED IN FINDINGS OF FACT AND CONCLUSIONS OF LAW 

IN RULING ON ITS DECISION TO DENY APPELLANT’S AMENDED 

MOTION TO VACATE JUDGMENT PURSUANT TO CIV.R. 60(B)(1) AND 

(5). 

{¶5} Mr. Simon’s first assignment of error argues that the trial court abused its 

discretion by failing to grant his motion for relief from the September 24, 2014, February 13, 

2015, and April 7, 2017, orders. His third assignment of error makes the same argument, but 

elaborates on one of his grounds in support of his motion for relief from the April 7, 2017, order. 

{¶6} Civ.R. 60(B) provides, in relevant part: 

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; * * * or (5) any 

other reason justifying relief from the judgment. 

A party challenging a judgment under Civ.R. 60(B) must demonstrate that (1) the party has a 

meritorious defense or claim, (2) a circumstance arises under Civ.R. 60(B)(1)-(5), and (3) the 

motion is made within a reasonable time. GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 

Ohio St.2d 146 (1976), paragraph two of the syllabus. A trial court’s determination of a motion 

for relief from judgment pursuant to Civ.R. 60(B) is reviewed for an abuse of discretion. Strack 

v. Pelton, 70 Ohio St.3d 172, 174 (1994). 
4 

 

{¶7} A trial court does not abuse its discretion by denying a motion for relief from 

judgment that is based exclusively upon issues that could have been raised on direct appeal. 

Schutte v. Akron Pub. School Bd. of Edn., 9th Dist. Summit No. 23036, 2006-Ohio-4726, ¶ 7, 

citing Yoakum v. McIntyre, 7th Dist. Columbiana No. 03 CO 63, 2005-Ohio-7083, ¶ 31. “If we 

were to hold differently, judgments would never be final because a party could indirectly gain 

review of a judgment from which no timely appeal was taken by filing a * * * motion to vacate 

judgment.” State ex rel. Durkin v. Ungaro, 39 Ohio St.3d 191, 193 (1988). 

{¶8} Mr. Simon argued that the trial court should grant him relief from judgment under 

Civ.R. 60(B)(1) and (5), and each of the grounds that he articulated in support of his motion was 

based on an alleged mistake by the trial court. As an initial matter, these arguments were not 

properly framed as grounds for relief from judgment under Civ.R. 60(B)(5), which “is intended 

as a catch-all provision reflecting the inherent power of a court to relieve a person from the 

unjust operation of a judgment, but * * * is not to be used as a substitute for any of the other 

more specific provisions of Civ.R. 60(B).” Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 

(1983), paragraph one of the syllabus. In other words, “Civ.R. 60(B)(5) only applies when one 

of the specific provisions enumerated in Civ.R. 60(B)(1) to (4) does not apply.” Doyle v. St. 

Clair, 9th Dist. Lorain No. 16CA010967, 2017-Ohio-5477, ¶ 13, citing Strack at 174. When a 

party alleges mistake as grounds for relief from judgment under Civ.R. 60(B), the motion must 

proceed under Civ.R. 60(B)(1), not Civ.R. 60(B)(5). Doyle at ¶ 14. 

{¶9} A “mistake” for purposes of Civ.R. 60(B)(1), however, is a mistake made by a 

party or counsel. Doyle at ¶ 14, citing Culgan v. Miller, 9th Dist. Medina No. 10CA0074-M, 

2011-Ohio-6194, ¶ 12. This Court has recognized that “‘a factual or legal mistake on the part of 

the trial court is not the type of mistake contemplated by Civ.R. 60(B)(1).’” Culgan at ¶ 12, 
5 

 

quoting Hankinson v. Hankinson, 7th Dist. Mahoning No. 03 MA 7, 2004-Ohio-2480, ¶ 20. 

When a party alleges a mistake by the trial court as grounds for relief from judgment under 

Civ.R. 60(B)(1), “any such mistake * * * would constitute error from which the aggrieved party 

must appeal.” Culgan at ¶ 13. See also Archer v. Dunton, 9th Dist. Summit No. 28519, 2017-

Ohio-8846, ¶ 11. Consequently, the mistakes alleged by Mr. Simon in support of his motion “do 

not present grounds for relief under any of the provisions of Civ.R. 60(B), Civ.R. 60(B)(5) 

included.” (Emphasis omitted.) Archer at ¶ 11. 

{¶10} In his motion for relief from judgment, Mr. Simon also argued that he was entitled 

to common law relief because the trial court lacked jurisdiction to modify his spousal support 

retroactively in the April 7, 2017, order. Although he has framed his assignments of error in 

terms of Civ.R. 60(B), they are also not well taken to the extent that he argues that the trial court 

should have granted him common law relief from judgment. 

{¶11} Ohio courts have the inherent authority to vacate void judgments without 

reference to Civ.R. 60(B). Patton v. Diemer, 35 Ohio St.3d 68 (1988), paragraph four of the 

syllabus. A void judgment may be vacated through a common law motion to set aside the 

judgment, but one that is voidable must be set aside as provided by Civ.R. 60(B). In re R.P., 9th 

Dist. Summit No. 26271, 2012-Ohio-4799, ¶ 19, citing State ex rel. DeWine v. 9150 Group, L.P., 

9th Dist. Summit No. 25939, 2012–Ohio–3339, ¶ 7. 

{¶12} The first argument to which Mr. Simon alludes in his brief is that the trial court 

lacked jurisdiction to enter the April 7, 2017, order because it did not reserve jurisdiction to 

modify his spousal support obligation in the divorce decree. When a trial court modifies spousal 

support without a reservation of jurisdiction under R.C. 3105.18(E)(1), however, the 
6 

 

modification order is voidable, not void. See, e.g., Michaels v. Michaels, 9th Dist. Medina No. 

11CA0012-M, 2012-Ohio-641, ¶ 5-9. 

{¶13} The second argument that Mr. Simon references is that the trial court lacked 

jurisdiction to make the spousal support modification retroactive to a period of time in which an 

appeal to this Court was pending. A trial court does not have jurisdiction to act while an appeal 

is pending “except to take action in aid of the appeal.” In re S.J., 106 Ohio St.3d 11, 2005-Ohio3215, ¶ 9, citing State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio 

St.2d 94, 97 (1978). Mr. Simon does not maintain that there was an appeal pending in this Court 

on April 7, 2017, when the trial court entered the spousal support order, but that an appeal was 

pending approximately five years earlier on the date to which the trial court made the 

modification effective. Any error in determining the date to which the modification was 

retroactive would also render the order voidable, not void. Because each of the grounds Mr. 

Simon has referenced in support of his common law motion would render the April 7, 2017, 

order voidable, the trial court did not err by denying his motion on that basis. 

{¶14} Mr. Simon’s first and third assignments of error are overruled. 

ASSIGNMENT OF ERROR NO. 2 

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO 

CONDUCT AN EVIDENTIARY HEARING ON APPELLANT’S MOTION TO 

VACATE PURSUANT TO CIV.R. 60(B)(1) AND (5) AND FAILED TO 

RECOGNIZE THAT NO TESTIMONY OR EVIDENCE HAD EVER BEEN 

ADMITTED INTO THE RECORD WHEN RULING ON ITS DECISION TO 

DENY APPELLANT’S AMENDED MOTION TO VACATE JUDGMENT 

PURSUANT TO CIV.R. 60(B)(1) AND (5). 

{¶15} In his second assignment of error, Mr. Simon has argued that the trial court erred 

by denying his motion for relief from judgment without conducting a hearing. This Court 

disagrees. 
7 

 

{¶16} “A person filing a motion for relief from judgment under Civil Rule 60(B) is not 

automatically entitled * * * to a hearing on the motion.” Adomeit v. Baltimore, 39 Ohio App.2d 

97, 103 (8th Dist.1974). A hearing is only required when a moving party alleges operative facts 

that would warrant relief. Coulson v. Coulson, 5 Ohio St.3d 12, 16 (1983), citing Adomeit at 

103. See also Primo Bedding Co., Inc. v. R. Acres, Inc., 9th Dist. Summit No. 24535, 2009-

Ohio-3971, ¶ 10. 

{¶17} As noted in this Court’s discussion of Mr. Simon’s first and third assignments of 

error, the basis for each of his arguments was that he was entitled to relief from the trial court’s 

judgments because of mistakes on the part of the trial court. He has, therefore, not alleged any 

operative facts that would warrant relief under Civ.R. 60(B), and the trial court was not required 

to conduct a hearing. Mr. Simon’s second assignment of error is overruled. 

III. 

{¶18} Mr. Simon’s assignments of error are overruled. The judgment of the Summit 

County Court of Common Pleas, Domestic Relations Division, is affirmed. 

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 
8 

 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 LYNNE S. CALLAHAN 

 FOR THE COURT 

CARR, P. J. 

HENSAL, J. 

CONCUR. 

APPEARANCES: 

MICHAEL J. CONNICK, Attorney at Law, for Appellant. 

JAMES L. LANE, Attorney at Law, for Appellee.